How far does a company’s duty of care extend when it comes to work health and safety (WHS)? To just employees? Employees and contractors? Employees, contractors and subcontractors? 

It may seem like employers would have varying levels of responsibility for the health and safety of workers depending on how they’re employed, but that’s not the case. Employees, contractors and subcontractors are all defined as workers under the WHS Act which means they enjoy the same rights and have the same responsibilities as each other. 

While WHS responsibilities for employers may vary depending on the project, generally they will include:

• Providing a safe working environment
• Inducting all workers so they’re aware of safety policies and standards
• Communicating regularly on safety issues, hazards and risks
• Supervision
• Including all workers in safety policies 

Who is considered a worker?

A ‘worker’ as defined under the WHS Act as anyone who carries out work for a person conducting a business or undertaking (PCBU) including: 

• Employees
• Contractors
• Subcontractor
• Self-employed people
• Outworkers 
• Apprentices
• Trainees
• Work experience students
• Employees of a labour hire firm
• Volunteers

All workers, regardless of how they’re employed, must take reasonable care for their own health and safety in the workplace and comply with the WHS PCBU’s policies and procedures. And all workers, regardless of the employment arrangement, have the right to have their health and safety safeguarded by the PCBU. 

Who is considered a person conducting a business or undertaking (PCBU)?

A PCBU is a person who has a primary duty to ensure the health and safety of all workers in their business or undertaking. 

A PCBU is conducting a ‘business’ if they are making an organised effort to make a profit.  A PCBU is conducting an ‘undertaking’ if they are making an organised effort to achieve something without it being commercial or profitable. 

What about a labour hire arrangement? 

In the case of labour hire firms, where they employ people who are then placed with a third party employer, the responsibility for WHS is generally shared. 

We recently had a case where a labour hire company was being investigated by SafeWork NSW for their WHS policies and procedures, triggered by one of the company’s labour hires injuring himself on a third party’s work site. Even though the client was the middleman, simply arranging a contractor and labour hire from company A to company C, and had no other involvement, they are still considered a PCBU under the WHS Act. The WHS Act outlines that more than one PCBU may have the same duty, in this instance a labour hire PCBU and a host PCBU have a shared responsibility for the worker. 

What should you include in your contracts?

It’s important to account for WHS obligations and duties in all employment, contractor or subcontractor contracts. This should include: 

• WHS policies and safe work procedures
• WHS roles and responsibilities of the PCBU and the employee, contractor or subcontractor
• What happens in the event of non-compliance (for example, a provision to terminate the contract in the event of reaches)
• Risk and hazard management processes 
• Reporting requirements for incidents, near misses, inductions and more 

The important thing to remember is that all contracts and policies must include all eligible workers, regardless of how they’re employed. If you start with the assumption that you should treat all workers alike, generally it will put you in good stead going forward.