The Work Health Safety Act 2011 (Qld) and its associated regulations (“the Act”) creates onerous obligations to protect the health and safety of workers in the workplace. Many business owners and operators do not realise the extent of the obligations imposed by the Act or the significance of the penalties that can be imposed when things go wrong. When Does a Workplace Health and Safety Obligation Arise? There are a number of workplace health and safety obligations in the Act. However, the primary obligation or “duty” imposed by the Act arises when a person who is conducting a business or undertaking (“PCBU”) engages workers, or causes workers to be engaged, or otherwise influences or directs how work is to be performed by workers. An example of a secondary duty is the duty of persons who have the management or control of workplaces. This can apply where a landlord leases an unsafe workplace to a PCBU. Even though the landlord does not have any control over the engagement of or work performed by workers, the landlord still has obligations to those workers pursuant to the Act. Further secondary duties include the duty of persons with the management or control of fixtures, fittings and plant used at workplaces as well as the designers and manufacturers of such equipment. Who is a Person and what is a Business or Undertaking pursuant to the Act? A person is defined to include a person conducting a business personally, in partnership, by way of an unincorporated association or by way of a corporate entity. You conduct a business or undertaking whether it is a business for profit or gain or a not for profit organisation. Therefore if you are running a business or organisation, no matter how it is structured or the purpose of it, you will most likely have workplace health and safety obligations pursuant to the Act. What is considered a Workplace? A workplace is defined to mean any place where work is carried out for a business or undertaking, and includes any place where a worker goes, or is likely to be, while at work. Consequently, the workplace in which your workers work could include such a variety of different places including a construction site, workshop, office, storage area as well as any other place the worker in question is required or may go while at work. Who is a Worker? A worker is defined to mean any person carrying out work, including an employee, a contractor or subcontractor, an employee of a contractor or subcontractor, an employee of a labour hire company who has been assigned to work for your business, an outworker, an apprentice or trainee, a student gaining work experience and a volunteer. Due to the width of the definition of worker, a worker is absolutely any person, whether employed or engaged directly by you, who is undertaking work at your direction or who you caused to be employed or engaged to undertake the work. For example, if you were the principal contractor for a construction project, any and all persons working on the construction site would be workers you caused to be engaged and who you owe workplace health and safety obligations. How do I comply with Workplace Health and Safety Obligations? To discharge your duty of care to ensure the health and safety of workers you must take all steps which are reasonably practical to eliminate risks of harm to workers. What is reasonably practical in any given situation will require consideration of the likelihood of the risk occurring, the degree of harm which might result from the risk, how aware you are of the risk and precautions you could take, the availability and suitability of ways to eliminate or minimise the risk and whether the cost associated with eliminating or minimising the risk is grossly disproportionate to the risk. The steps required to be taken to discharge your duty of care (by taking all steps reasonably practical to eliminate the risk) will depend upon the circumstances of each case. However, common risk or harm minimisation procedures include compliance with any applicable codes of practice, preparation of safe work method statements, provision of workplace health and safety training, implementation of codes of practice and safe work methods and the monitoring and review of the effectiveness and adequacy of your harm minimisation strategies. What happens if I breach my Workplace Health and Safety Obligations? A failure to provide a safe working environment attracts significant penalties. If the breach causes the death of a worker, a maximum penalty of a $660,000.00 fine or 5 years imprisonment applies. If the breach causes significant harm or injury occurs to a worker a maximum fine of $330,000.00 applies. If you simply breach your obligations but the breach does not cause death or injury, you can still be fined up to $110,000.00. Not only can the PCBU (i.e. the employer or contractor) be prosecuted for breaches of the Act, if the PCBU is a corporation, so can its executive offices. The Act states that an executive officer of a corporation must ensure that the corporation complies with its obligations under the Act and can be prosecuted for their failure to do so. An executive officer is defined as a person who participates in making decisions for the corporation or has the capacity to significantly affect its financial standing. The workplace health and safety obligations briefly canvassed above are just some examples of the obligations which may arise. Please contact us if you would like advice specific to your circumstances or an issue arises. For building and construction legal advice, please contact one of our team:
Footnotes:  See section 19 of the Act.  For all secondary duties, see sections 20 to 26 of the Act.  Per section 5 of the Act.  Per section 8 of the Act.  See section 7 of the Act.  See section 18 of the Act.  See section 28(5) of the Act.  See definition of executive officer contained in schedule 5 of the Act.