Duty of Care

DUTY OF CARE

The new harmonised work health and safety legislation applies a duty of care to individuals filling specific roles in your church or organisation . The application and extent of these responsibilities should be understood by all employers and individuals involved in employment. Some of the key areas of the new legislation are as follows:

  • The primary duty of care is the responsibility of the person conducting the business or undertaking, however a duty of care of some degree will apply according to the extent of a person’s association within the workplace.
  • A duty of care cannot be transferred to another person, and a person can have more than one duty by virtue of being in more than one class of duty holder.
  • Officers of a corporation have positive due diligence obligations.

 

Who owes a duty of care?

The new laws express the legal expectations and requirements of ‘persons conducting a business or undertaking’ (PCBU) and other individuals associated (Other Duty Holders) with that persons’ business or undertaking.

A PCBU could be an individual (natural person) or an incorporated body, for example, a company. A PCBU or Other Duty Holder cannot delegate a duty of care and it is possible that, at any one time, a PCBU or Other Duty Holder may hold multiple concurrent duties of care with respect to the same workplace(s).

Primary Duty of Care is the PCBU.

The PCBU has the primary duty of care with respect to work health and safety. In a departure from the traditional approach to occupational health and safety legislation, a person with the primary duty does not necessarily have to be an employer.

Next in rank are those PCBUs who manage or control workplaces.

A PCBU in this category must ensure, as far as reasonably practicable, that the workplace is without risk to health and safety. The workplace includes entrances and exits. A PCBU can fall into this category even if that person’s activities are limited to management or control of fixtures, fittings or plant used at the workplace.

A worker has a duty to take reasonable care for the worker’s own health and safety and also that of anyone else at the workplace. An integral part of the worker’s duty is the requirement to comply with reasonable instructions, policies and procedures. Anyone else within the workplace has a duty to take reasonable care and to comply with reasonable instructions and this duty will, for example, extend to workplace visitors.

A duty of care is owed by its directors, company secretaries and any person who makes or participates in decisions affecting the business or who has the capacity to affect significantly the financial standing of the corporation. These ‘officers’ of the corporation must exercise due diligence and make earnest efforts to ensure compliance. The new laws go some way to explain the concept of due diligence and it is possible to derive the following succinct checklist

  1. An officer must acquire and keep up-to-date knowledge of work health and safety matters. In our view, this will require officers to make the effort to gain the necessary knowledge and to ensure that it is contemporary.
  2. An officer must gain an understanding of the nature of the operations and a general understanding of the associated hazards and risks. In our view, the duty requires positive steps to comprehend the operations and to be familiar with its workings and the potential adverse effects and consequences.
  3. An officer must take reasonable steps to ensure there are appropriate resources and processes to eliminate or minimise health and safety risks. Even though this may not fall within the direct realm of the officer’s typical day to day responsibilities, nevertheless, the officer will need to be satisfied about the adequacy of those resources and processes.
  4. An officer will need to ensure that the business has appropriate processes for receiving and considering information regarding incidents, hazards and risks and that there are appropriate processes for responding in a timely way to this information. This is likely to involve a consideration of the risk management processes, incident notification procedures and improvement regimes.
  5. An officer will need to be satisfied that the business has in place compliance processes such as those regarding notification, workplace consultation, instruction and training.
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