PCBU Primary Duty of Care in South Australia

What it is

South Australia adopted the model Work Health and Safety Act 2012 (SA) with commencement in 2013. Every person conducting a business or undertaking (PCBU) has a primary duty of care under section 19. SafeWork SA administers the framework.

South Australia introduced industrial manslaughter as a specific offence commencing 1 July 2024, one of the more recent additions to the SA WHS framework.

Section 19 primary duty

Section 19 of the WHS Act 2012 (SA) 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 matching the model WHS framework: safe work environment, safe plant and structures, safe systems of work, safe use of substances, welfare facilities, information and training and health monitoring.

Section 18 reasonably practicable

Section 18 of the WHS Act 2012 (SA) defines reasonably practicable using the five-factor test consistent with other model WHS jurisdictions: likelihood, degree of harm, knowledge of the hazard, availability and suitability of controls plus cost as the final consideration.

Officer accountability

Section 27 imposes personal due diligence duties on officers. Officer prosecutions in South Australia have increased over the past decade, and directors of building companies should not delegate WHS compliance without maintaining oversight of implementation.

Industrial manslaughter (section 30A)

South Australia enacted industrial manslaughter as a specific offence under section 30A of the WHS Act 2012 (SA), commencing 1 July 2024. The offence applies where a PCBU or senior officer engages in conduct that constitutes a failure to comply with a health and safety duty and that conduct causes the death of a person.

Penalties: individual up to 20 years imprisonment. Body corporate up to $18 million. The $18 million corporate maximum is at the higher end of Australian industrial manslaughter penalties.

The 1 July 2024 timing

South Australia's 1 July 2024 commencement of industrial manslaughter was significant for two reasons. First, it followed a decade of debate on whether SA should adopt a specific offence. Second, it commenced alongside the July 2024 model WHS national engineered stone ban, giving industry a single commencement date for two major reforms.

TradeForm SA templates flag both reforms as commencing 1 July 2024 for compliance analysis purposes.

Category offences

Category 1 (section 31) up to $300,000 or 5 years imprisonment individual / $3,000,000 body corporate. Category 2 (section 32) up to $150,000 individual / $1,500,000 body corporate. Category 3 (section 33) up to $50,000 individual / $500,000 body corporate.

SA penalty amounts are set in dollar figures and were increased in 2024 amendments alongside the industrial manslaughter commencement.

Construction industry focus

SafeWork SA administers WHS Act compliance for the SA building industry. The 1 July 2024 SA high-risk construction work fall threshold dropped from 3 metres to 2 metres, giving SA the strictest fall threshold in Australia and creating additional compliance obligations for residential construction.

How South Australia compares

SA's section 19 duty aligns with NSW, QLD, WA, TAS, ACT and NT (all model WHS jurisdictions). The distinctive SA features are the 1 July 2024 industrial manslaughter commencement, the $18 million body corporate maximum penalty, and the 2 metre fall threshold for high-risk construction work.

The 2 metre fall threshold is unique to SA. Every other Australian jurisdiction uses 2 metres for high-risk construction work but SA also applies additional height-related controls. Residential builders operating across SA and other states need SA-specific fall management plans.