WHS Responsibilities
Disclaimer
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
IMPORTANT: The information in this presentation is of a
general nature, and should not be relied upon as individual
professional advice. If necessary, legal advice should be
obtained from a legal practitioner with expertise in the field of
WHS law.

Although every effort has been made to ensure that the
information in this presentation is complete, current and
accurate, the Mining & Quarrying Occupational Health &
Safety Committee, any agent, author, contributor or the South
Australian Govt, does not guarantee that it is so, and the
Committee accepts no responsibility for any loss, damage or
personal injury that may result from the use of any material
which is not complete, current and accurate.

Users should always verify historical material by making and
relying upon their own separate inquiries prior to making any
important decisions or taking any action on the basis of this
information.
Session Overview
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
Work Health & Safety Legal Framework

PCBU Primary Duty of Care

Management of Risks

Officer Duty

Worker’s Duty of Care

Penalties

Health and Safety Representative’s Role

Managers’, Supervisors’ and Team Leaders’ Duties

Defined Roles and Responsibilities

Mine Holder / Mine Operator Duty

Safety Management Systems for Mines

Liability

Summary
WHS Legal Framework
WHS
Act SA 2012
WHS
Regulations SA 2012
Codes of Practice
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Work Health and Safety Act 2012
The South Australian Work Health and Safety Act 2012 provides a framework
to protect the health, safety and welfare of all workers at work and of other
people who might be affected by the work.
The WHS Act aims to:
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
protect the health and safety of workers and other people by eliminating
or minimising risks

promote information, education and training on WHS and provide effective
compliance and enforcement measures

deliver continuous improvement and higher standards of WHS

ensure fair and effective representation, consultation and cooperation to
address and resolve WHS issues

encourage unions and employer organisations to take a constructive role
in improving WHS practices, and

assisting businesses and workers to achieve a healthier and safer working
environment.
Work Health and Safety Regulations
The South Australian Work Health and Safety Regulations 2012, state the
way in which some duties under the WHS Act must be met and prescribes
procedural or administrative requirements to support the WHS Act.
This includes but is not limited to the following:
Authorisations
 Registration and licencing for asbestos removal and high risk work
Workplace

Facilities, first aid and personal protective equipment
Chemicals
 Lead, asbestos, labelling, safety data sheets and major hazard facilities
Other hazards
 Plant, manual tasks, noise, work at heights, remote and isolated work,
confined spaces, electricity
Mining Operations
 Safety management systems, principle mining hazards and emergency
response plans, management of contractors
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Approved Codes of Practice
Provide practical guidance on how to meet the standards set out in the Act
and Regulations.
Codes of Practice:

are a tool to help PCBUs to meet compliance

are admissible in court proceedings as evidence of whether or not a duty
has been complied with

can also be referred to by an inspector when issuing an improvement or
prohibition notice.
Compliance with Codes of Practice is not mandatory providing that any other
method used provides an equivalent or higher standard of WHS than
suggested by the Code of Practice.
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Reasonably Practicable
Under the WHS Act 2012 (SA),
S.18 – What is “reasonably practicable” in ensuring health and safety?
Reasonably practicable in relation to a duty to ensure health and safety,
means:

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that which is, or was at a particular time, reasonably able to be done to
ensure health and safety, taking into account and weighing up all relevant
matters.
Reasonably Practicable
Under the WHS Act 2012 (SA),
S.18 – What is “reasonably practicable” in ensuring health and safety?
This also includes:
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
the likelihood of the hazard or the risk concerned occurring and the
degree of harm that might result from the hazard or the risk

what the person knows, or should reasonably know, about the hazard or
the risk, and the ways of eliminating or minimising the risk

the availability and suitability of those ways of eliminating or minimising
the risk

after assessing the risk, identifying ways of eliminating or minimising the
risk and the costs, including whether the cost is grossly disproportionate
to the risk.
Person Conducting Business or
Undertaking
Under the WHS Act 2012 (SA),
S.5 - Meaning of person conducting a business or undertaking
(employer)
The definition of a person conducting a business or undertaking (PCBU)
means a person conducts a business or undertaking:

whether the person conducts the business or undertaking alone or with
others

whether or not the business or undertaking is conducted for profit or gain.
This includes a business or undertaking conducted by a partnership or an
unincorporated association.
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PCBU Primary Duty of Care
Under the WHS Act 2012 (SA),
S.19 - Primary Duty of Care
A person conducting a business or undertaking (PCBU) must ensure, so
far as is reasonably practicable, the health and safety of:
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
workers engaged, or caused to be engaged

workers whose activities in carrying out work are influenced or directed
while the workers are at work

other persons (visitors and volunteers) are not put at risk from work
carried out as part of the business activities.
PCBU Primary Duty of Care
Under the WHS Act 2012 (SA),
S.19 - Primary Duty of Care
A PCBU must ensure, so far as is reasonably practicable, the provision
and maintenance of:
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
a work environment without risks to health and safety

safe plant, structures and safe systems of work

the safe use, handling and storage of plant, structures and substances

adequate facilities to support the welfare of workers

monitoring of the health of workers and conditions at the workplace to
prevent illness or injury of workers

any information, training, instruction or supervision that is necessary to
protect all persons from risks to their health and safety.
Officers
Under the WHS Act 2012 (SA),
S.27 – Officers
The definition of an “officer” means:

a director or secretary of the corporation

a person who makes or participates in making decisions that affect the
whole or a substantial part of the business of the corporation

a person who has the capacity to affect significantly the corporation’s
financial standing.
The term “Officer” comes from Section 9 of the Commonwealth Corporations
Act 2001.
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Officers Duty
Under the WHS Act 2012 (SA),
S.27 – Officers
Officers must take all reasonable steps to ensure the PCBU uses and
applies:

appropriate resources

policies and procedures

health and safety practices in the workplace.
If a person is responsible only for implementing those decisions, they are not
considered an officer.
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PCBU Duty to Manage Risks
Under the WHS Regulations 2012 (SA),
R.34 - Duty to identify hazards
A PCBU duty holder, in managing risks to health and safety, must:

identify reasonably foreseeable hazards that could give rise to risks to
health and safety.
R.35 - Managing risks to health and safety
A PCBU duty holder, in managing risks to health and safety, must:
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
eliminate risks to health and safety so far as is reasonably practicable;
and

if it is not reasonably practicable to eliminate risks to health and
safety, minimise those risks so far as is reasonably practicable.
PCBU Duty to Manage Risks
Under the WHS Regulations 2012 (SA),
R.36 - Hierarchy of control measures
If it is not reasonably practicable for a duty holder to eliminate risks
to health and safety, a duty holder must implement risk control
measures by doing one or more of the following:

substituting (wholly or partly) the hazard giving rise to the risk with
something that gives rise to a lesser risk

isolating the hazard from any person exposed to it

implementing engineering controls
If a risk then remains, the duty holder must minimise the remaining risk,
so far as is reasonably practicable, by implementing administrative
controls and, if a risk then remains, by ensuring the provision and use of
suitable personal protective equipment.
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Workers
Under the WHS Act 2012 (SA),
S.8 & 28 – Workers
The definition of a “worker”:

means a person who carries out work in any capacity for a PCBU
The definition of a Worker has been expanded to include contractors and
others whose work environment a PCBU has the capacity to control – this
includes an employee of a labour hire company, an apprentice or trainee,
work experience student or volunteer.
Managers, supervisors and team leaders are also deemed to be workers!
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Workers Duty of Care
Under the WHS Act 2012 (SA),
S.28 – Workers
Workers have a duty and obligation to:
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
take reasonable care that his or her acts or omissions (actions or words)
do not adversely affect the health and safety of other persons.

comply, so far as the worker is reasonably able, with any reasonable
instruction designed to protect their health and safety and that of any
other persons while at work

co-operate with any reasonable policy or procedure relating to health or
safety at the workplace that they have been notified of.
Penalties
Category 1 – for reckless conduct that exposes an individual to a risk of
death or serious injury or illness that is engaged in without reasonable
excuse
Category 2 – failure to comply with a health and safety duty that
exposes an individual to a risk of death or serious injury or illness
Category 3 – failure to comply with a health and safety duty
Duty Holder
Category 1
Category 2
Category 3
Individual worker or other
person at the workplace
$300,000 or
5 years
imprisonment
$150,000
$50,000
Individual PCBUs or officers
$600,000 or
5 years
imprisonment
$300,000
$100,000
$3,000,000
$1,500,000
$500,000
Body Corporate or
Government body
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Health and Safety Representatives (HSR)
Under the WHS Act 2012 (SA),
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
A work group must be established by a PCBU when a worker(s) requests
that an HSR be elected.

A work group(s) must be formed after consultation between the PCBU
and the worker(s).

The PCBU must provide any resources, facilities and assistance that are
reasonably necessary or that are approved by legislation to enable
elections to be conducted.
Health and Safety Representatives (HSR)
Under the WHS Act 2012 (SA),
S.66 – Immunity of Health and Safety Representatives
A health and safety representative is not personally liable for anything
done or said to be done in good faith:
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
in exercising a power or performing a function under the Act; or

in the reasonable belief that the thing was done or said to be done in the
exercise of a power or the performance of a function under the Act.
Health and Safety Representatives (HSR)
Under the WHS Act 2012 (SA),
S.68 – Powers and Functions of Health and Safety Representatives
The powers and functions of a health and safety representative for a
work group are:
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
to represent the workers in the work group in matters relating to work
health and safety

to monitor the measures taken by the PCBU, or that person's
representative, in compliance with the Act in relation to workers in the
work group

investigate complaints from members of the work group relating to work
health and safety

to inquire into anything that appears to be a risk to the health or safety of
workers in the work group.
Health and Safety Representatives (HSR)
Under the WHS Act 2012 (SA),
S.68 – Powers and Functions of Health and Safety Representatives
In exercising a power or performing a function, the HSR may:
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
inspect the workplace or any part of the workplace at which a worker in
the work group works at any time, after giving reasonable notice to the
PCBU at that workplace, or without notice in the event of an incident or
any situation involving a serious risk to the health or safety of a person
where there is an immediate or imminent exposure to a hazard

accompany an inspector during an inspection of the workplace

with the consent of a worker(s) that the HSR represents, be present at an
interview concerning work health and safety between the worker or a
group of workers and an inspector, PCBU and the person's representative

request work to cease that places imminent and serious risks to workers
health and safety.
Managers, Supervisors and Team
Leader Duties
Managers, supervisors and team leaders often share the same
responsibilities for WHS.
The WHS Act states that each duty holder must comply with that duty to
the standard required by this Act even if another duty holder has the
same duty.
If more than one person has a duty for the same matter, each
person:
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
retains responsibility for the person’s duty; and

must discharge their duty to the extent to which the person has the
capacity to influence and control the matter or would have had that
capacity but for an agreement or arrangement purporting to limit or
remove that capacity. .
Defined Roles and Responsibilities
Having clearly defined roles and responsibilities means everyone knows what
is expected and how they can contribute.
PCBU, management, supervisors and workers (including contractors) should
be able to locate their WHS roles and responsibilities in the following
documents:
 Employment agreements
 Job descriptions
 Works contracts
 Inductions
 Workplace policies, procedures and work instructions
 Safe Work Method Statements
 Performance management criteria
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Mine Holder / Mine Operator
WHS Regulations 2012 (SA), chapter 10 – Mines
The mine holder is the:
 mine operator unless they appoint another PCBU to be the mine
operator
 PCBU with control over a right or entitlement to carry out mining
operations at the mine (primary duty holder).
A reference to a PCBU at a mine refers to the mine operator or mine
holder of the mine and therefore the mine operator or mine holder will
also have duties under the following sections of the WHS Act:
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
S.19 Primary duty of care

S.20 Duty of PCBUs involving management or control of workplaces

S.21 Duty of PCBUs involving management or control of fixtures,
fittings or plant at workplaces
Safety Management Systems for Mines
WHS Regulations 2012 (SA), chapter 10 – Mines
R.621 – Duty to Establish and Implement Safety Management
System (SMS)
Used as primary
means of ensuring
health & safety or
workers & others
Documented,
readily available &
understandable
Part of overall
management
system
Contents as
specified in 622
Appropriate to
nature &
complexity of the
mine
Maintained to
ensure
effectiveness
Reviewed at least
every 3 years &
sooner to remain
effective
Comprehensive &
integrated
Mine operator must
establish &
implement an SMS
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Safety
Management
System
R.621
Sufficient to refer to
a plan/ document if
already addressed
Safety Management Systems for Mines
Under the WHS Regulations 2012 (SA),
R.622 – Content of Safety Management System
Ventilation
Control Plan &
Ventilation
Plan
Principal
Mining Hazard
Management
Plans
Mine Survey
Plan
Withdrawal
situations
Emergency
Plan
Notifications
Worker &
Contractor
Management
Risk
Management
Health & Safety
Policy
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Specific
Control
Measures
Safety
Management
System
R.622
Performance
Standards &
Audit
Safety Management Systems for Mines
A safety management system (SMS) for a mine is the primary means of
ensuring the safe operation of a mine. It brings together a number of
procedures and policies to ensure it is comprehensive enough to suit
the risks and complexity of the mine operations.
It is a tool that enables a mine operator to follow a process that will
assist them in systematically achieving and maintaining the required
level of health and safety.
A SMS also allows the mine operator to demonstrate the management
of health and safety on site:
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
to other persons, in particular, contractors or other persons
conducting a business or undertaking working at the mine site

when seeking certification with an external organisation, and

when assessing the mine systems against recognised industry
standards.
Liability
Question: What are the limits of your liability?
Answer: Your liability extends to the following:
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
Your qualifications (what you should know or ought to know)

Training

Level of experience

Knowledge of the workplace and processes

The specific WHS responsibilities and authorities as described in a
position descriptions and workplace policies and procedures
Summary
PCBUs
 Have primary duty of care to all workers on site by providing a working
environment without risks to health and safety
Officers
 Ensure the PCBU uses and applies appropriate resources, policies,
procedures and health and safety practices in the workplace
Managers
 Are responsible and accountable for the implementation and
performance of the business and management systems within their
areas of responsibility
Supervisors and team leaders
 Are responsible for the day to day operations to ensure workers are
adequately supervised & working safely
Workers
 Follow any reasonable instruction and do not place themselves or any
one else at risk of injury through their acts or omissions (actions or
words)
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Further Information
For further assistance, MAQOHSC WHS Specialists are available
for guidance, onsite support and advice on WHS Matters.
www.maqohsc.sa.gov.au
MAQOHSC WHS Specialists can be contacted via:
Les Allen
Phone: 08 8204 9807
Mobile: 0403 160 706
Email: les.allen@sa.gov.au
Eric McInerney
Phone: 08 8303 9908
Mobile: 0448 914 630
Email: eric.mcinerney@sa.gov.au
Work, Health and Safety Legislation, Codes of Practice, fact
sheets, HSR information and guides can be found at the
following websites:
SafeWork SA - www.safework.sa.gov.au
SafeWork Australia – www.safeworkaustralia.gov.au
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