Do employers have to provide personal protective equipment (PPE)?
Persons conducting a business or undertaking (PCBU) in NSW are required to implement measures to protect workers’ health and safety. In some circumstances, this includes a requirement to provide personal protective equipment (PPE) to workers.
If you are a worker, you may have questions about the nature and extent of this obligation, including who it applies to, how it might apply in different employment arrangements, and the consequences of non-compliance.
In this blog, we look at:
- what is PPE?
- the definitions of PCBU and worker under the Work Health and Safety Act 2011 (NSW) (WHS Act);
- obligations on both a PCBU and a worker related to the provision and use of PPE;
- consequences of non-compliance with PPE obligations; and
- workers’ rights if appropriate PPE is not provided.
This blog specifically addresses PPE obligations in NSW, however, it should be noted that different jurisdictions across Australia will have similar obligations and protections for workers.
What is PPE?
The term PPE is defined in the Work Health and Safety Regulation 2017 to mean ‘anything used or worn by a person to minimise risk to the person’s health and safety, including air supplied respiratory equipment’.
A wide range of PPE is used by workers across different industries. Common examples include hard hats, face masks, eye protection, gloves and high-visibility clothing. On the other hand, work clothing that is not worn for the purpose of minimising risks to personal health and safety is not PPE.
What is a PCBU?
The phrase person conducting a business or undertaking is defined in section 5 of the WHS Act. In short, a PCBU refers to an individual or organisation that operates a business or undertaking, either alone or with others. Under the WHS Act, a PCBU has a duty to ensure the health and safety of workers and others affected by their operations.
The definition includes all forms of modern working arrangements; for example, businesses, partnerships, and unincorporated associations, whether the entity is for profit or not. This means that a head contractor or labour hire company is a PCBU in the same way an employer is.
In some employment arrangements, multiple people can have the same duty as a PCBU. For example:
- if you are a labour-hire worker, the labour-hire agency and the person or business directing the work are both a PCBU; and
- if you work for a subcontractor, the head-contractor and the subcontractor are both a PCBU.
What obligations does a PCBU have in relation to PPE?
A PCBU is required to manage risks to health and safety by:
- eliminating risks to health and safety so far as is reasonably practicable; and
- if not reasonably practicable to eliminate, minimise those risks as far as is reasonably practicable.
Under Work Health and Safety Regulation 2017 (WHS Regulations), PPE is the “last resort” in the hierarchy of minimising risks. This means that it must be provided to workers where the hazard cannot be eliminated, avoided, isolated or addressed with engineering or administrative controls. This simply means that a PCBU is required to address any hazard/risk to health and safety in other ways before resorting to PPE. As noted above, this obligation may attach to several persons in the employment scenario (e.g., head-contractor and contractor).
Regulation 44(2) of the WHS Regulations requires each PCBU to provide workers with the necessary PPE unless it has been provided by another PCBU. This means that, for example, the person directing work may not have to provide PPE if it has already been provided by a labour-hire company.
Under regulation 44(3), the PCBU providing the worker with PPE must ensure that it is:
- selected to minimise risk to health and safety, including by ensuring it is:
- suitable having regard to the nature of the work and any hazard associated with the work, and
- a suitable size and fit, and reasonably comfortable for the worker who is to use or wear it, and
- maintained, repaired or replaced so that it continues to minimise risk to the worker who uses it, including by ensuring that the equipment is:
- clean and hygienic, and
- in good working order, and
- used or worn by the worker, so far as is reasonably practicable.
Further, the PCBU must provide you with information, training and instruction on the proper use and wearing of the PPE, as well as the storage and maintenance of the PPE.
How is a “worker” defined in the WHS Act (NSW)?
The WHS Act defines “worker” in broad terms. You will be a “worker” if you carry out work in any capacity for a PCBU, including as:
- an employee; or
- a contractor or subcontractor; or
- an employee of a contractor or subcontractor; or
- an employee of a labour hire company who has been assigned to work in the person’s business or undertaking; or
- an outworker; or
- an apprentice or trainee; or
- a student gaining work experience; or
- a volunteer; or
- a person of a prescribed class.
It is possible for a PCBU to also be a worker if the relevant individual carries out work in the business or undertaking; for example, a subcontractor who physically works and has others working for them.
Can my boss make me pay for my own PPE?
Under the WHS Act, a PCBU cannot charge you for the provision of PPE.
What PPE obligations do I have as a worker?
As a worker, you have obligations in relation to wearing PPE under regulation 46 of the WHS Regulations.
Specifically, you are obligated to use or wear the equipment in accordance with any information, training or reasonable instruction by the PCBU. Further, you must not intentionally misuse or damage the equipment, and must notify a PCBU of any damage to, defect in or need to clean the equipment that you become aware of.
What are the consequences of non-compliance with PPE obligations?
Non-compliance by a PCBU
A PCBU who either does not provide workers with PPE or who charges workers for PPE is subject to penalties.
Penalties for a PCBU can include the following:
- For not providing appropriate PPE or not providing information, training and instruction about the PPE: fines of $40,040* for a body corporate or $8,030* for an individual.
- For charging a worker for PPE: fines of $33,440* for a body corporate or $6,710* for an individual.
Non-compliance by a worker
A worker may also be subject to penalties for breaching obligations in relation to the PPE (e.g., for intentionally misusing or damaging it).
Penalties for workers can include $23,870* for a body corporate and $4,730* for an individual.
* Figures are current as of March 2025 but can be subject to change.
What can I do if my employer is not providing me with appropriate PPE?
If you have a dispute about PPE, it’s always best to try and resolve things with your employer in the first instance. This means raising the fact that your work requires PPE, that it is not being provided, or it is sub-standard or faulty, and requesting that the employer provide appropriate equipment. If you are a union member, you should seek the assistance of your union.
If unsuccessful, you could remind them of their obligations under the WHS Act, and/or raise it with any elected Health and Safety Representatives at your workplace. If you are unable to resolve the issue with your employer, it may be necessary to report the employer to SafeWork NSW (who has the power to investigate and prosecute contraventions of the WHS Act) or seek advice from your union or an employment lawyer.
If any adverse action is taken against you in response to your making a complaint, there are legal avenues available to address such conduct.
Get help from an employment lawyer
PPE is crucial safety equipment in many workplaces. It is provided for the health and safety of workers across NSW. It’s important to understand that both PCBUs and workers have obligations under the WHS Act and WHS Regulations. Workers also have rights and entitlements if a PCBU is not providing appropriate PPE.
If you have questions about you or your workplace’s obligations in relation to PPE, please reach out to one to one of award-winning employment lawyers.
Contacting Hall Payne Lawyers
You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.
Phone: 1800 659 114
Email: general@hallpayne.com.au
This article relates to Australian law; either at a State or Federal level.
The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based upon your particular circumstances. For further information, please do not hesitate to contact Hall Payne Lawyers.
