Not Only are WHS Duties “Not Transferrable” …
Weekly WHS Article 20th October 2022
… but it is also illegal to subcontract out WHS duties too!
What does this mean?
The NSW WHS laws are built on three key concepts concerning WHS duties that are the essence of work health and safety law. They are:
That there are WHS duty holders. These are specifically identified in the WHS Act as the PCBU, Officers of the PCBU, Workers, and Others.
That WHS duty holders have duties that must be carried out. Duty holders may have more than one duty and some duties may even be the same as other duty holders. The duties that apply to each duty holder are stated in each of the Sections of the WHS Act that pertain to those duty holders (see ref 1).
WHS duties are not transferrable. This is stated directly in Section 14 of the WHS Act where it simply says “A duty cannot be transferred to another person.”
On the point of duties not being transferrable, an easy example would be the subject of workplace consultation. This is the duty of the PCBU. The PCBU must consult the workforce on health and safety matters. The how, why, and when of that is covered in Sections 46-49 of the WHS Act. These apply to the PCBU.
The PCBU must consult with its workforce to gather recommendations, suggestions, information and knowledge from workers when proposing controls, policies, rules, or procedures on health and safety matters, including investigating and reviewing WHS controls.
Officers of the PCBU must ensure that the PCBU does this and has mechanisms to gain this information (see ref 2).
Small companies and sole traders would deal directly with their staff to obtain the information they need.
Larger companies may have representatives of the PCBU consult with HSRs who represent groups of workers from workgroups that have been established in the business.
For businesses that don’t have workgroups the PCBU can obtain the information and feedback they need from a health and safety committee.
Consultation must take place – initiated and performed by the PCBU. The PCBU cannot pass his legal duties over to “managers” or “the committee” or “to the HSRs.” Although they play a part in the process it is not the duty of “managers”, “the committee”, or “HSRs” to consult on matters of health and safety. They are to be consulted, so that information is obtained for the PCBU to make the big decisions (see ref 3).
Further to this, the WHS Act makes mention that WHS duties cannot be sub-contracted out.
This is covered in Section 272 where is says:
272 No contracting out A term of any agreement or contract that purports to exclude, limit or modify the operation of this Act or any duty owed under this Act or to transfer to another person any duty owed under this Act is void.
Some businesses engage external consultants to oversee or help with their WHS management system. This person may advise and help the PCBU to better meet their obligations under WHS law. This can be very useful and effective.
At no stage however can the PCBU pass it’s obligations over to the external consultant (or any staff member actually) for them to do instead. This would be a violation of Section 14 A duty cannot be transferred to another person and Section 272 No contracting out.
The WHS Law is very clear on who are the duty holders, what their duties are, and that those duties have to be owned.
When all WHS duty holders do what they are meant to do we get happy, safe and well workplaces where maximum productivity can occur.
Ref 1. Section 19 of the WHS Act applies to the PCBU. Section 27 of the Act applies to Officers of the PCBU. Section 28 of the Act applies to workers (including line managers and supervisors.) Section 29 of the Act applies to Others (visitors, customers, sub-contractors.)
Ref 2. Section 27, Duties of Officers (1), 5 (c, d, e)
Ref 3. See page 17 How to Consult with Workers, Code of Practice: WHS Consultation, Consultation and Cooperation