PCBU Primary Duty of Care in Queensland

What it is

Queensland adopted the model Work Health and Safety Act 2011 (Qld) in 2011. Every person conducting a business or undertaking (PCBU) has a primary duty of care under section 19 to ensure, so far as is reasonably practicable, the health and safety of workers and other persons.

Workplace Health and Safety Queensland (within Office of Industrial Relations) administers the Act. Queensland was the first Australian jurisdiction to enact an industrial manslaughter offence in 2017.

Section 19 primary duty

Section 19(1) requires a PCBU to ensure, so far as is reasonably practicable, the health and safety of workers engaged, or caused to be engaged, by the PCBU and workers whose activities are influenced or directed by the PCBU. Section 19(2) extends the duty to other persons who could be exposed to risks arising from the work.

Section 19(3) sets specific duties: safe work environment, safe plant and structures, safe systems of work, safe use of substances, welfare facilities, information and training and monitoring of workers' health and workplace conditions.

Section 18 reasonably practicable

Section 18 of the WHS Act 2011 (Qld) defines reasonably practicable using the same five-factor test as NSW: likelihood, degree of harm, knowledge, availability and suitability of controls plus cost weighed against the risk.

Officer due diligence

Section 27 imposes a personal duty on officers of a PCBU to exercise due diligence. Due diligence includes acquiring and maintaining knowledge of WHS matters, understanding the operations and hazards, ensuring resources are available, ensuring processes for compliance are in place, and verifying implementation.

Officer prosecutions in Queensland are increasingly common. Directors of building companies cannot avoid personal liability by delegating WHS compliance.

Industrial manslaughter (section 34C)

Queensland was the first Australian jurisdiction to enact industrial manslaughter as a specific offence, commencing 23 October 2017. Section 34C of the WHS Act 2011 (Qld) applies where a person (PCBU or senior officer) negligently causes the death of a worker.

Penalties: up to 20 years imprisonment for an individual and up to $20 million for a body corporate. The 2024 penalty increase brought Queensland into line with NSW and other jurisdictions.

Category offences

Category 3 (section 32) up to $100,000 individual / $500,000 body corporate. Category 2 (section 33) up to $300,000 individual / $1,500,000 body corporate. Category 1 (section 31) up to $600,000 or 5 years imprisonment individual / $3,000,000 body corporate.

Construction industry specific matters

Queensland has specific residential construction focus areas through the Building and Construction Industry (Portable Long Service Leave) Act 1991 (Qld) and workplace consultation frameworks. Site inductions and safety briefings are typical WPHS compliance areas.

The QBCC Act licensing framework runs alongside the WHS framework for residential builders. Non-compliance with WHS Act obligations can also trigger QBCC disciplinary action against the licence.

How Queensland compares

Queensland's section 19 duty aligns with NSW, SA, TAS, ACT, NT and WA (all model WHS jurisdictions). The distinctive Queensland feature is that it enacted industrial manslaughter first (2017) before other jurisdictions followed. Victoria followed in 2020, and other states have since caught up with their own variations.

The 2024 penalty increase to $20 million corporate maximum for industrial manslaughter brings Queensland into line with the highest penalty jurisdictions.