What every PCBU must do under section 36 of the HSWA — and what “so far as is reasonably practicable” really means
Section 36 of the HSWA places the primary duty of care on every PCBU: you must ensure, so far as is reasonably practicable, the health and safety of your workers, and that other people are not put at risk by your work. “Reasonably practicable” is a defined balancing test — weighing the likelihood and degree of harm against what you know and the availability, suitability and cost of controls. You must eliminate risk where you can, and minimise it where you can't.
The primary duty of care is the central obligation of the HSWA. A PCBU must ensure, so far as is reasonably practicable, the health and safety of the workers it employs, engages, or whose work it influences or directs — and that the health and safety of other people is not put at risk by the work it carries out.
“Health” covers both physical and mental health. “Other people” means anyone who could be affected by the work: visitors, customers, members of the public, and the workers of other businesses. The duty follows the work, not just the worksite — it travels with what your business does and wherever its work reaches.
So far as is reasonably practicable, a PCBU must provide and maintain each of the following.
| Requirement | What it covers |
|---|---|
| A safe work environment | Physical and psychological conditions — layout, ventilation, lighting, noise, and work pressures such as fatigue and stress. |
| Safe plant and structures | Machinery, equipment, vehicles and anything that is constructed, kept in good working order. |
| Safe systems of work | The processes and procedures for how the work is actually done. |
| Safe use, handling and storage | Of plant, substances and structures. |
| Adequate welfare facilities | Toilets, drinking water, washing and rest areas — and access to them. |
| Information, training, instruction and supervision | Enough to protect workers and others from risks arising from the work. |
| Health and exposure monitoring | Monitoring workers' health and workplace conditions to prevent injury or illness. |
Source: HSWA 2015, s36. A PCBU that provides worker accommodation, or is self-employed, has further duties under the same section.
Almost every PCBU duty is qualified by the phrase “so far as is reasonably practicable”. It is not a licence to do the bare minimum, and it is not a demand for the impossible — it is a defined balancing test.
Section 22 defines it as that which is reasonably able to be done to ensure health and safety, having weighed up and considered all relevant matters, including:
| Factor | The question it asks |
|---|---|
| Likelihood | How likely is the hazard or risk to occur? |
| Degree of harm | How serious is the harm that might result if it does? |
| Knowledge | What does the person know, or ought reasonably to know, about the hazard or risk and the ways of eliminating or minimising it? |
| Availability and suitability | What control measures are available and suitable to eliminate or minimise the risk? |
| Cost | After assessing the risk and the available controls, the cost — including whether it is grossly disproportionate to the risk. |
Cost is considered last, and only once the risk is understood. A control is not “not reasonably practicable” simply because it costs money — the cost must be grossly disproportionate to the risk before it outweighs doing the control. (Source: HSWA 2015, s22.)
The HSWA sets a clear order. You must eliminate risks so far as is reasonably practicable. Only where elimination is not reasonably practicable may you minimise the risk so far as is reasonably practicable instead. Minimising follows the hierarchy of controls — substitution, isolation and engineering controls ahead of administrative controls, with PPE as the last line of defence, not the first.
This is why “we issued PPE” is rarely a complete answer. If a higher-order control was reasonably practicable, relying on PPE alone will not satisfy the duty.
The primary duty sits with the PCBU — usually the business entity, not the individual people within it. Officers such as directors have their own due-diligence duty to ensure the PCBU meets this duty, and workers and other people at the workplace have their own narrower duties to take reasonable care. The PCBU duty cannot be transferred or contracted out, and where more than one PCBU shares a duty, each must still meet it in full and they must consult, co-operate and co-ordinate with one another. See what a PCBU is and how overlapping duties work and the officer due-diligence duty.
The HSWA has a three-tier penalty structure. The most serious tier is reckless conduct that exposes a person to a risk of death or serious injury or illness.
| Offence | Worker / other individual | PCBU or officer (individual) | Body corporate |
|---|---|---|---|
| Reckless conduct (s47) | Up to $300,000 and/or 5 years | Up to $600,000 and/or 5 years | Up to $3,000,000 |
| Failing to comply, exposing to risk (s48) | Up to $150,000 | Up to $300,000 | Up to $1,500,000 |
| Failing to comply with a duty (s49) | Up to $50,000 | Up to $100,000 | Up to $500,000 |
Figures are maximum fines; courts also order reparation to victims, and it is unlawful to insure or indemnify against an HSWA fine. (Source: HSWA 2015, ss 47–49.)
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It is the central duty under section 36 of the HSWA: a PCBU must ensure, so far as is reasonably practicable, the health and safety of its workers, and that other people are not put at risk by the work the business carries out. It covers the work environment, plant and structures, systems of work, substances, facilities, information and training, and health monitoring.
It means doing what is reasonably able to be done to ensure health and safety, after weighing the likelihood of harm, the degree of harm, what you know or ought to know about the risk and its controls, the availability and suitability of those controls, and finally the cost — which only outweighs a control if it is grossly disproportionate to the risk.
No. It protects workers (including contractors and others whose work you influence or direct) and also “other persons” — visitors, customers, the public, and the workers of other businesses — who could be put at risk by your work.
Usually not on its own. The HSWA requires you to eliminate risk so far as is reasonably practicable and, if you can't, to minimise it using the hierarchy of controls. PPE is the last line of defence; if a higher-order control was reasonably practicable, relying on PPE alone will not satisfy the duty.
There are three tiers. Reckless conduct can mean up to $600,000 and five years' imprisonment for an individual PCBU or officer, and up to $3,000,000 for a company. Lesser tiers apply to failing to comply with a duty that exposes someone to risk, and to failing to comply with a duty. Fines cannot be insured against.
