The complex world of Work Health and Safety in the NDIS

Work Health and Safety (WHS) is delightfully complex at the best of times, and downright painful at the worst of times. Many people may assume that lines of WHS responsibility and obligation in NDIS service delivery are pretty simple - that the responsibility falls solely on the provider.

But things are rarely that simple when talking about WHS, particularly if the participant is using a platform provider. New advice from Safe Work NSW, the state’s WHS regulator, has given clarity to these providers (and participants using them) while also opening a can of worms on which parties might have WHS responsibilities in participant-provider-work relationships. In this article we’ll unpack current WHS advice, the new guidance from NSW, and what it might mean for providers and participants across the country.

Who sets Australia's Work Health and Safety Laws?

WHS is the process of managing risks in conducting a business. It’s usually framed as risks to the workforce, but also covers risks to customers (e.g. participants), visitors, subcontractors, suppliers, and more. WHS rules are administered and implemented by each State and Territory. Every State & Territory in Australia work off the national model law (which is a consistent set of high-level principles), except Victoria who go their own way, but there is general consistency in tone. WHS laws outline the obligations that every business must meet.

What is a ‘person conducting a business or undertaking' and why does this matter?

The model WHS requirements are built on the idea of a PCBU. A PCBU stands for a ‘person conducting a business or undertaking’. This is an intentionally broad term to encompass a wide range of different working structures and arrangements, but generally refers to organisations (whether companies, partners, sole traders, or most other business types).

A person who performs work for a PCBU is considered a worker. Workers also have responsibilities under safety laws, including taking care of themselves and others.

One of the purposes of such a broad definition is that it encompasses a huge range of business structures and ways of engaging workers, not just standard employee-employer relationships. This can help to stop unscrupulous or naive businesses from categorising workers in a way that moves WHS obligations (and the associated costs) from the business to somewhere or somebody else.

Who is the PCBU when participants use a platform provider?

In 2021 a Senate Select Committee Inquiry published their first interim report into platform providers. This report highlighted WHS in platform providers specifically as a major concern:

The committee is deeply concerned about the potential legal grey area exposed in evidence to this inquiry from Mable, Safe Work Australia, the Australian Services Union and others. While no case has tested the premise, witnesses confirmed that current legislative arrangements indicate that individual NDIS participants could be personally responsible for the occupational safety of workers provided through platforms.

This is pretty stark – the idea that participants could be considered as PCBUs and, ultimately, can be held liable for negligence if an WHS incident occurs (potentially meaning the same penalties as employers). This is not something your average participant using a platform provider considers when jumping onto the app.

To date, platform providers have not had any specific guidance. Fast forward to 2024, and Safe Work NSW provided some additional guidelines for platform providers that aim to clarify the definition of PCBU in this somewhat tricky three-way involving the participant, the worker, and the platform. This guidance outlines that in NSW:

• Workers, including support coordinators, using a platform under their own ABN are considered PCBUs

• NDIS participants and nominees might be considered PCBUs if they directly employ their own workers to deliver support in an environment they have management or control of

• Participants directing the work of providers or workers, like telling a provider or worker how tasks are to be completed, could also be considered as PCBUs

• The platform itself is also considered to be a PCBU and has to fulfill the relevant duties and responsibilities.

The SafeWork NSW guidance makes it clear that the platform provider has a primary duty of care to workers using their platform, meaning that the platform provider is ultimately responsible for identifying, assessing, managing, mitigating, and eliminating risks in work. The platform provider also must provide workers using the platform with information and training to safely complete required tasks, as well as to report notifiable safety incidents and potentially serious near misses to SafeWork NSW.

But the message is clear from Safe Work NSW: almost everyone in this mix could be considered a PCBU.

What happens when there is more than one PCBU?

The idea of PCBU is used to determine who holds the main responsibility of managing health and safety risks in the workplace. But there can also be multiple PCBUs.

However, where there is more than one PCBU, they can have concurrent responsibilities and can each have a duty of care to workers and others. Therefore, if something goes wrong all parties can be held liable for neglect of their duties. In the situation of a platform provider, this may mean that the worker, participant, and platform provider could all be held liable in the event of a significant WHS breach or incident.

The SafeWork NSW guidance also states that there can be multiple parties considered to be PCBUs within a single environment or service relationship. One relevant court case (McGrath v Edmen Recruitment Pty Ltd (2012)) was where both a labour hire agency and the host employer were found to be negligent, when the hire agency worker was injured at the host employer’s site. The labour hire agency had completed a general site safety risk assessment, but this did not include an assessment of specific work tasks and the adequacy of the safety measures in place for the work that was to be undertaken by the worker. The court found that both companies were PCBUs and had a primary duty of care to ensure the health and safety of the worker.

In summary: PCBU responsibilities are significant, can sometimes be executed in partnership with multiple PCBUs, and can’t be simply transferred onto another party when the worker is out of sight. It’s up to PCBUs to be alert to changing work conditions and ensure that risks are managed.

Who is the PCBU when participants use a traditional provider?

The elephant in the room is whether this approach may spill over into non-platform providers. Many NDIS services are delivered remotely, putting much of the practical negotiations about how the work is done in the hands of participants and workers. For many participants, this works very well. There’s been ongoing rumours and whispers for a while about the WHS obligations of participants, particularly those that self-manage their supports and engage workers directly, and whether they automatically take on the responsibilities of a PCBU.

The guidance from SafeWork NSW makes things murkier. It includes some guidance for participants, which lays the foundation for participants to be considered as PCBUs but is also fairly broad and assumes that many participants are already across their WHS obligations (which isn’t always the case). So, the jury is still out on what WHS implications and consequences might fall onto participants in more traditional provider-employee-participant relationships.

But don’t panic. Any court would consider the circumstances and the fact that the participant is an individual rather than a company, and that they are unlikely to be a WHS expert. However, the legal framework exists to make it possible for participants to take on the responsibilities of PCBUs.

There are no specific rules for participants who self-manage their supports or engage providers or workers directly.

State and Territory complexities

There are variations between States & Territories. For example, Victoria doesn’t use the term PCBU but has similar obligations and concepts. Every other State & Territory uses the model law. Therefore, across Australia, any employers engaging contractors in their workplace have a duty to protect the health and safety of the contractors. Watch this space to see if other States & Territories follow the lead of NSW and provide further guidance about what parties might be considered as PCBUs (or the equivalent) when platform providers are involved.

Questions this raises

This guidance from NSW raises a lot of questions. Including:

• Will other jurisdictions follow NSW and issue further guidance clarifying who can be considered a PCBU in platform provider-worker-participant relationships?

• Which jurisdiction will be the first to investigate a potential WHS breach where a platform provider is involved in delivering supports to NDIS participants, and who will be defined as a PCBU?

• Will States & Territories act on the Senate Select Committee call-to-action and close the WHS loophole that can see a participant considered as a PCBU and held liable for WHS breaches when directing support workers?

• And is that even possible? The definitions of PCBUs are intentionally broad and any change would have implications for every other business in Australia.

• How can providers support choice & control on the frontline while at the same time meeting their obligations as a PCBU?

• Who is supporting self-managing participants to understand and execute their WHS obligations? Cos the NDIA certainly aren’t.

Unfortunately, that’s a lot more questions than answers. The implications of the lack of clarity might end up being significant. Everybody deserves to work in a safe environment, so WHS obligations - in all their complexity - need to be taken seriously. This is an important space to watch, so we’ll be sure to keep you up to date with any big developments.