Understanding Section 19 of the Model WHS Act: Duties of Persons Conducting a Business or Undertaking (PCBU) in Australia

Section 19 of the Model Work Health and Safety (WHS) Act in Australia outlines a fundamental aspect of workplace safety: the primary duty of care.

Under this section, the responsibility for health and safety in the workplace is placed squarely on Persons Conducting a Business or Undertaking (PCBU). The law defines PCBUs as those individuals or entities responsible for running businesses or undertakings, including companies, sole traders, government departments, and not-for-profits.

This duty is broad and comprehensive, requiring PCBUs to take proactive measures to ensure the safety and well-being of all workers and others impacted by their operations.

Primary Duty of Care: Ensuring Health and Safety

Section 19 outlines that every PCBU must ensure, so far as is reasonably practicable, the health and safety of workers while they are at work. This duty of care extends not only to employees but to all workers involved with or affected by the business, including contractors, subcontractors, apprentices, interns, volunteers, and even visitors.

The primary duty of care requires PCBUs to provide a safe work environment, free from risks to health and safety, and to take proactive measures to manage and eliminate potential hazards. The term “reasonably practicable” is significant, as it implies that PCBUs must take steps that are reasonably within their ability to control, given factors such as the likelihood of the risk, the degree of harm possible, and the availability of control measures.

Providing and Maintaining a Safe Work Environment

To meet the requirements of Section 19, PCBUs must ensure the workplace is safe and free from health risks. This includes maintaining facilities for the welfare of workers, such as providing adequate ventilation, lighting, and sanitation. Additionally, PCBUs should monitor workplace conditions, manage hazardous materials, and maintain equipment to prevent potential safety hazards.

The duty of care also involves controlling access to certain areas, securing hazardous equipment, and ensuring the physical environment supports safe work practices. A well-organized and hazard-free workplace plays a critical role in preventing accidents and injuries.

Safe Systems of Work and Safe Use of Plant, Structures, and Substances

Section 19 requires PCBUs to implement safe systems of work and ensure the safe use, handling, and storage of equipment, structures, and hazardous substances. Safe systems of work are the processes and procedures developed to reduce risks and provide clear guidance to workers. This includes having protocols in place for handling hazardous chemicals, operating machinery, and responding to emergencies.

PCBUs must also assess and manage risks associated with plant (such as machinery and tools) and structures (such as buildings and scaffolding) in the workplace. Proper risk assessments, safe operating procedures, and regular maintenance schedules help fulfill this aspect of Section 19.

Adequate Information, Training, and Supervision

Section 19 emphasizes the importance of providing adequate information, training, instruction, and supervision to ensure the health and safety of workers. This responsibility requires PCBUs to ensure that workers understand the risks associated with their tasks and know how to perform their duties safely.

Training should cover a wide range of topics, including:

- How to use personal protective equipment (PPE)

- Safe operation of machinery

- Emergency response procedures

- Hazard identification and reporting mechanisms

Supervision is equally important, especially for new workers or those engaging in high-risk tasks. Ensuring workers are well-informed and confident in safety procedures helps reduce incidents and fosters a culture of safety.

Monitoring Worker Health and Workplace Conditions

Section 19 also requires PCBUs to monitor the health of workers and the conditions at the workplace. Regular health checks, safety inspections, and risk assessments are essential for identifying potential hazards and ensuring ongoing compliance with safety standards. Monitoring can include air quality checks, noise level assessments, and ergonomic evaluations, among other methods.

Monitoring worker health is particularly important in industries where exposure to chemicals, noise, or physical strain can lead to long-term health impacts. By routinely assessing health risks and conditions, PCBUs can respond to emerging hazards and take corrective action promptly.

Duty Extending to Non-Workers

The duty of care under Section 19 of the Model WHS Act extends beyond just employees and workers. PCBUs are also responsible for ensuring the safety of any other persons who may be affected by their business operations, such as visitors, clients, or contractors. For instance, if a business involves public interaction, PCBUs must assess risks to the public and take steps to minimize hazards.

This duty reflects the WHS Act’s emphasis on creating safe workplaces not only for workers but also for everyone who might be impacted by the work environment.

Practical Application of “Reasonably Practicable” Measures

A key concept in Section 19 is that of “**reasonably practicable**” measures, which determine the extent of a PCBU’s duty based on what they can realistically control. The WHS Act outlines factors that PCBUs should consider when deciding what is reasonably practicable, including:

   - The likelihood of a hazard or risk occurring

   - The degree of harm that might result from the hazard

   - What the PCBU knows, or ought to know, about the hazard and ways of reducing it

   - The availability and suitability of methods to eliminate or mitigate the hazard

   - The cost of implementing control measures, balanced against the risk

This concept of “reasonably practicable” allows for flexibility, acknowledging that while a zero-risk environment may be ideal, businesses must take steps to minimize risks to the best of their ability.

Penalties for Non-Compliance

Non-compliance with Section 19 of the WHS Act can lead to significant legal and financial consequences for PCBUs. The Act specifies a range of penalties, depending on the severity of the violation and whether the breach was intentional or due to negligence.

Penalties can include substantial fines, legal liability for injuries, and in extreme cases, imprisonment for individuals found responsible. The enforcement of these penalties underscores the importance of PCBUs fulfilling their duty of care diligently and highlights the WHS Act’s role in holding businesses accountable for workplace safety.

Fostering a Culture of Safety

Section 19 of the Model WHS Act is a foundational element of workplace safety in Australia. By setting clear expectations for PCBUs to provide a safe work environment, enforce safety measures, and monitor conditions, it aims to prevent accidents, injuries, and health issues in Australian workplaces.

For PCBUs, fulfilling their duty of care means more than just compliance—it’s about fostering a culture where safety is valued, risks are proactively managed, and workers feel empowered to engage in safe practices. By adhering to the requirements of Section 19, PCBUs not only protect their workers but also contribute to a healthier, more resilient workplace that can benefit everyone involved.