Work health and safety 

Work health and safety law in Australia has been substantially harmonised across jurisdictions through model legislation adopted, with local variations, in most states and territories. At its centre is a single organising idea: the person best placed to control risk is the one the law makes primarily responsible for managing it.

The person conducting a business or undertaking

Work health and safety legislation does not frame its central duty around the narrower common law language of "employer" and "employee." Instead it speaks of a person conducting a business or undertaking, universally abbreviated as a PCBU, and of workers, a category that extends beyond employees to include contractors, subcontractors, labour hire workers, outworkers, and in some cases volunteers. This wider framing reflects the reality of modern work arrangements, where the person controlling a workplace and the person legally employing a worker are often not the same entity.

The primary duty of care

A PCBU owes a primary duty of care: so far as is reasonably practicable, to ensure the health and safety of workers engaged, or caused to be engaged, by the PCBU, and of workers whose activities are influenced or directed by the PCBU while at work. This duty is broad in scope, covering the provision and maintenance of a safe working environment, safe systems of work, safe plant and structures, safe use, handling and storage of substances, adequate facilities, and the information, training, instruction and supervision necessary to protect workers from risks.

The qualifying standard, reasonably practicable, is doing what is reasonably able to be done to ensure safety, weighing the likelihood and severity of the risk against the knowledge available about it and the availability and cost of ways to eliminate or minimise it. It is not a strict, uncompromising standard, but neither is it satisfied merely by following ordinary industry practice if that practice does not in fact manage the identified risk.

Shared and non-delegable

Two features of the primary duty are worth separating out because they are often confused.

First, the duty is non-delegable: a PCBU cannot discharge its own duty simply by engaging someone else — a contractor, a safety consultant, a labour hire agency — to manage safety on its behalf. This statutory principle has a common law root: Kondis v State Transport Authority (1984) 154 CLR 672¹ held an employer's duty to ensure a safe system of work could not be discharged merely by engaging an independent contractor to perform it. The PCBU may rely on others to perform tasks, but legal responsibility for ensuring the duty is met remains with the PCBU itself.

Second, the duty is shared, in the sense that more than one PCBU can owe the primary duty in respect of the same worker or the same workplace at the same time — a head contractor, a subcontractor and a labour hire agency may each owe overlapping duties to the same worker on a single site. Where duties overlap, each duty-holder must discharge their own duty to the extent they have the capacity to influence the matter, and, to the extent reasonably practicable, must consult, cooperate and coordinate activities with the other duty-holders. Discharging a shared duty is therefore not a matter of pointing to another PCBU's obligation; each duty-holder remains independently answerable.

Officers of a PCBU (broadly, its directors and other decision-makers) also owe their own positive due diligence duty to ensure the PCBU complies with its obligations, which requires proactive steps such as acquiring and keeping up to date knowledge of work health and safety matters, and verifying that resources and processes to comply are actually provided and used, rather than merely delegating the issue downward.

Civil regulation and industrial manslaughter

Breach of the work health and safety duties is primarily enforced through a civil regulatory framework: improvement and prohibition notices, and a tiered structure of offences of varying seriousness tied to the degree of risk and culpability involved, prosecuted by the relevant safety regulator and attracting substantial financial penalties and, for the most serious categories, the possibility of imprisonment for individuals.

Separately, a number of Australian jurisdictions have introduced a distinct and more serious offence commonly known as industrial manslaughter, targeting conduct — typically gross negligence or recklessness — by a PCBU or its officers that causes the death of a worker. This is a criminal offence sitting alongside, rather than replacing, the ordinary tiered work health and safety offences, and it generally carries a substantially higher maximum penalty, including lengthy imprisonment for individuals. Exactly which jurisdictions have enacted an industrial manslaughter offence, and the precise elements and penalties involved, differs between jurisdictions and continues to develop, so the position in any particular jurisdiction should always be checked against that jurisdiction's current legislation rather than assumed.

Vicarious liability has a threshold the non-delegable duty does not. In Bird v DP (a pseudonym) (2024) 98 ALJR 1349² the joint reasons held at [5] that "an employer may be vicariously liable for the acts of its employees, but there is no such liability for the acts of those who are not in an employment relationship but, instead, are, for example, independent contractors or in a relationship 'akin to employment'". Analyse the two routes separately.

Victoria has legislated past that threshold for one class of case. Section 93C of the Wrongs Act 1958 (Vic)³, inserted in 2026, makes an institution vicariously liable for child abuse by "an employee of the institution or an individual akin to an employee" where the role it placed them in "supplies the occasion for the abuse" — and it applies whether the abuse occurred before or after commencement. Identify the jurisdiction and the type of claim before applying the common law threshold.

Applying this in a problem question

1. Identify the PCBU (or PCBUs) in the scenario, remembering the concept is broader than "employer," and identify the relevant workers, remembering the concept is broader than "employee."
2. State the primary duty of care and apply the reasonably practicable standard to the specific risk on the facts, rather than asserting a breach in the abstract.
3. Where more than one PCBU is involved, address the shared and non-delegable character of the duty for each of them separately.
4. Consider whether any officer's due diligence duty is also in issue.
5. Distinguish the applicable civil regulatory offence from a possible industrial manslaughter charge, and identify which jurisdiction's law governs before assuming that offence exists there.