In Queensland, “duty of care” is the everyday name for the health and safety duties in the Work Health and Safety Act 2011 (Qld). The main one, in section 19, requires a business to ensure, so far as is reasonably practicable, the health and safety of its workers and of other people its work could put at risk.
This guide explains who owes a duty to whom, what the main duty includes and what a small business can do. For more detail, see our guide on what a PCBU is.
What does “duty of care” mean at work?
In the copies of the Work Health and Safety Act 2011 (Qld) (the WHS Act) and the Work Health and Safety Regulation 2011 (Qld) we checked, the words “duty of care” appear only in headings. Division 2 of Part 2 of the WHS Act and section 19 are both headed “Primary duty of care”. The approved codes of practice use the phrase more loosely: the approved How to Manage Work Health and Safety Risks Code of Practice 2021, for example, says a code applies to anyone who has a duty of care in the circumstances it describes.
So in practice “duty of care” is shorthand for the legal duties to look after the health and safety of people affected by work. The WHS Act spreads those duties across several kinds of people, and the dictionary in schedule 5 of the Act says “health” means physical and psychological health. That means the duty covers more than physical injury.
This guide does not cover civil claims. Section 267 of the WHS Act says that, apart from exceptions it lists, nothing in the Act is to be construed as conferring a right of action in civil proceedings for a contravention of the Act, or as conferring a defence to, or otherwise affecting, a right of action in civil proceedings.
Who owes a duty of care to whom?
| Who | Owes a duty to | In short |
|---|---|---|
| A person conducting a business or undertaking (PCBU) (section 19) | Workers it engages or influences or directs; other people affected by its work | Ensure their health and safety, so far as is reasonably practicable. |
| A PCBU that manages or controls a workplace, or fixtures, fittings or plant at one (sections 20 and 21) | Anyone | The workplace, the ways in and out, and the fixtures, fittings and plant are without risks to anyone’s health and safety, so far as is reasonably practicable. |
| Designers, manufacturers, importers, suppliers and installers (sections 22 to 26) | People who use, handle, store or build what they provide | Plant, substances and structures are without risks, so far as is reasonably practicable, plus information and testing duties. |
| An officer (section 27) | Not stated; the duty concerns the PCBU’s compliance | Exercise due diligence to ensure the PCBU complies with its duties. |
| A worker (section 28) | Themselves and others | While at work, take reasonable care and follow reasonable instructions. |
| Any other person at the workplace, such as a visitor (section 29) | Themselves and others | Take reasonable care and follow reasonable instructions, so far as they are reasonably able. |
Two definitions matter. Under section 7, a worker is anyone who carries out work in any capacity for a PCBU, including an employee, a contractor or subcontractor, a labour hire worker, an apprentice, a student on work experience or a volunteer. Under section 5, a person conducts a business or undertaking whether they do it alone or with others, and whether or not it is run for profit. Our guide on WHS officers and safety officers explains how an “officer” differs from a safety officer.
The Work Health and Safety Regulation 2011 (Qld) has one further “primary duty of care”, in section 703. It applies to people who are not conducting a business, such as an occupier storing dangerous goods or an owner of high risk plant, at premises that are not workplaces (see section 702).
What does the PCBU’s main duty include?
Section 19(1) covers workers engaged, or caused to be engaged, by the PCBU and workers whose activities are influenced or directed by it, while they are at work. Section 19(2) adds that the health and safety of other persons must not be put at risk from the work, so far as is reasonably practicable. Without limiting that, section 19(3) says the PCBU must ensure, so far as is reasonably practicable:
- the provision and maintenance of a work environment without risks to health and safety;
- the provision and maintenance of safe plant and structures;
- the provision and maintenance of safe systems of work;
- the safe use, handling and storage of plant, structures and substances;
- adequate facilities for the welfare of workers at work, including access to them;
- any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from the work; and
- that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the business.
A self-employed person must also ensure, so far as is reasonably practicable, their own health and safety while at work (section 19(5)).
What does “so far as is reasonably practicable” add?
It sets the standard. Section 17 says a duty to ensure health and safety requires a person to eliminate risks so far as is reasonably practicable and, if that is not reasonably practicable, to minimise them so far as is reasonably practicable. Section 18 defines the phrase as what is, or was at a particular time, reasonably able to be done, weighing up all relevant matters, including how likely the harm is, how bad it could be, what you know or ought to know, the ways available to control it, and, after assessing the risk and those ways, the cost. Read our reasonably practicable guide for the full test.
Duties are shared and cannot be handed over
- A duty cannot be transferred. Section 14 says a duty cannot be transferred to another person. Hiring a contractor, appointing a safety officer or telling a supervisor to handle it does not move your duty.
- A person can hold several duties. Section 15 says a person can have more than one duty by being in more than one class of duty holder. An individual PCBU who does work in the business is also a worker (section 7(3)).
- More than one person can hold the same duty. Under section 16, each duty holder keeps responsibility for their own duty and must discharge it to the extent they can influence and control the matter, or would have been able to but for an agreement or arrangement that limits or removes that capacity.
- Duty holders must work together. Section 46 requires each person with a duty for the same matter to consult, cooperate and coordinate activities with the others, so far as is reasonably practicable. The approved code of practice on managing risks gives an example: if you engage labour hire workers, you share a duty of care to them with the business that provides them. See who is responsible for safety on a construction site for how this plays out with several businesses on one job.
A worker’s duty of care
Workers are duty holders too. Under section 28, while at work a worker must take reasonable care for their own health and safety, take reasonable care that their acts or omissions do not adversely affect others, comply (so far as they are reasonably able) with any reasonable instruction from the PCBU that allows it to comply with the Act, and cooperate with any reasonable health or safety policy or procedure the PCBU has notified to workers.
Made-up example: who owes what?
This example is invented to show how the duties fit together. It is not a real case or a legal opinion.
Mia runs a small renovation business. She engages Dev, a sole trader tiler, to cut tiles with a wet saw at a customer’s house. The saw’s guard is missing, and she has told Dev to “sort it out himself” under their agreement.
- Mia is a PCBU. Dev carries out work for her, so he is also her worker (section 7(1)(b)), and she must ensure his health and safety so far as is reasonably practicable (section 19(1)). Her agreement with Dev does not transfer that duty (section 14).
- Dev is also a PCBU, as a sole trader, and a worker. He has his own duties, including under section 28 and section 19(5).
- Both hold duties for the same matter, the safe use of the saw, so each keeps responsibility for their own duty and they must consult, cooperate and coordinate (sections 16 and 46).
- If the customer’s child wanders near the cutting area, Mia must ensure so far as is reasonably practicable that other persons are not put at risk from her work (section 19(2)). Anyone at the workplace must also take reasonable care (section 29).
What a small business can do
These steps are common practice for meeting the duties above. The Act does not prescribe this exact list, so adapt it to your own work.
- Write down who is responsible for what. A short policy that names the owner, supervisors and workers helps everyone see their own part in the duties above. Start with the free work health and safety policy template.
- Find and rate your hazards. Walk the job, list what could hurt someone, and decide what to do first. The free risk assessment template gives you a place to record it.
- Control the risk at the source where you can. Section 17 starts with elimination, then minimisation. The Hazard Management Policy Template sets out a policy for how your business manages hazards.
- Consult your workers. Section 47 requires a PCBU to consult, so far as is reasonably practicable, workers who are or are likely to be directly affected by a safety matter, and section 48 says what consultation involves, including sharing information and taking workers’ views into account.
- Train, supervise and coordinate. Section 19(3) lists information, training, instruction and supervision, and section 46 expects you to coordinate with other businesses on the same job.
- Keep simple records and review them. If you want a full manual for the business, the WHS Manual Template is one option. Any template is a starting point to adapt to your own site.
This guide is general information, not legal advice. Check the current law or talk to Workplace Health and Safety Queensland for your situation.
Templates for this job
Ready-to-edit Word and Excel templates for Queensland workplaces.
