Who are PCBUs, Officers, Workers and Others under the WHS Act and what are their duties?

The WHS Act places duties on those persons, who by their acts or omissions from or associated with work being undertaken, affect health and safety.

The duty holders are:

· PCBUs
· Officers
· Workers and other persons at the workplace

 A person in control of a business or undertaking - PCBU

A PCBU is the legal entity operating a business or undertaking. A PCBU may be an individual person or an organisation conducting a business or undertaking.

Examples of PCBUs that are organisations include:
  • public companies
  • private companies
  • trustees that are companies
  • cooperatives that are companies
  • government departments and authorities
  • incorporated associations if they employ someone
  • local authorities (municipal corporations or councils)
  • schools

It is not an individual, unless they are conducting the business in their own name as a sole trader or partner.

Examples of PCBUs who are individuals include:
  • partners in partnerships 
  • sole traders and the self employed
  • individual trustees of trusts (as with some family businesses)
  • committee members of unincorporated associations if they employ someone.

 

The person conducting the business or undertaking is also a worker if they carry out work in the business or undertaking.

However the WHS Act makes it clear that an individual is not a PCBU if they are involved in the business or undertaking only as a worker or officer of the business or undertaking.  Individuals who are directors or in managerial positions within employing organisations have separate and specific duties as officers.

What must the PCBU do ?

 
A PCBU must ensure, so far as is reasonably practicable, that the health and safety of workers and other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

A PCBU will be liable if they expose a person to risk to their health and safety and the risk arose from work carried out as part of the conduct of the business or undertaking.

For PCBUs, their duties are qualified by what is “reasonably practicable” in ensuring health and safety.

 

Additional duties for specific PCBU activities

The WHS Act also places additional duties on PCBUs who carry out specific activities associated with work or workplaces:

  • Persons with management or control of a workplace,
  • Designers, manufacturers, installers, constructors, importers and suppliers of plant, structures or substances.

Persons in control of workplaces, designers, manufacturers, installers, constructors, importers and suppliers of plant, structures or substances have a responsibility, so far as is reasonably practicable, to ensure these are without risks to health and safety of workers and people who are at or near the workplace.

The duties are specified for each category. They involve ensuring safety throughout the life cycle of the product for those exposed to or affected by its use at or in the vicinity of the workplace.

The duties require examination, analysis and testing and the provision of information to ensure that the plant, substance or structure does not have health and safety risks.

What is a business or undertaking?

The WHS does not define “business” or “undertaking”. However these are broadly explained in guidance material as:

Business = commercial, for profit
Undertaking = usually not profit making or commercial. Can include households and voluntary organisations

Private or domestic activities are not explicitly excluded by the WHS Act or its regulations.

PCBU duties involve work

The duties of a PCBU are involved with carrying out work.

The PCBU will have a health and safety duty if it arranges for work to be done, directs or influences it, or contributes something for the work to be done.
Work is not defined in the WHS Act.

In contrast the now replaced NSW OHS Act 2000 defined work as meaning  “work as an employee or self employed person.”

Further the NSW OHS Act defined “at work” as when the employee is at the employer’s place of work and not otherwise.

WHS Act definition of workplace:

Workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes or is likely to be while at work.

In summary:

A health and safety duty is owed by a PCBU if it:

  • engages workers or causes workers to be engaged
  • influences or directs workers activities
  • has the management or control of the workplace in which work is done
  • designs, manufactures, imports, supplies, installs, commissions or constructs plant or structures or substances for use at a workplace.

Who is not a PCBU?

The WHS Act specifies who is not a PCBU. These are:

1   Volunteer associations which have no workers

A “volunteer association” which does not employ any workers is not a PCBU.

“Volunteer association” means a group of volunteers working together for one or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.

If the association employs someone, or causes someone to be employed, they become a PCBU.

2   Elected members of local authorities

An elected member of a local authority does not in that capacity conduct a business or undertaking.

3   Strata bodies unless they engage workers

The WHS Act allows further exclusions to be made by regulation.  At this stage, the WHS Regulations exclude ‘strata title bodies corporate that are responsible for common areas used only for residential purposes’, unless the strata title body corporate engages one or more workers as an employee.

Private and domestic work 

Work for private or domestic purposes is not explicitly excluded by the WHS Act or regulations.

However guidance material provided by the regulators says that the intent of the legislation is that the following kinds of persons should not to be taken to be PCBUs:

  • Individuals who carry out domestic work in and around their own home (e.g. domestic chores etc).
  • Individual householders who organise one-off events such as dinner parties, garage sales, lemonade stalls etc.
  • Individual householders who engage persons to carry out ad hoc home maintenance and repairs or other domestic work, e.g. casual babysitters; tradespeople to undertake repairs. It is important to note that a tradesperson will either be a worker for a business or undertaking, or a business or undertaking in their own right if the tradesperson is self-employed.

If a person is engaged in work on a routine or ongoing basis for domestic purposes, then the householder who has engaged them could be categorised as a PCBU with all the associated duties.  

 

Officers

The duty of care placed on officers is that of “due diligence” An officer is personally liable to undertake due diligence. The duty is proactive.

 

Who is an officer?
  • Directors, company secretary, partner, officeholder
  • Those involved in making decisions that affect the whole or a substantial part of the business or undertaking
  • Those with capacity to affect significantly the organisation’s financial standing
  • Those on whose instructions or wishes directors are accustomed to act
  • Receivers, administrators, liquidators

Workers and other persons

The duty of care for workers and others is that of “reasonable care”.

While at work, workers are required to take reasonable care for their own safety and that of others who may be affected by their actions or omissions. They must also cooperate with any actions taken by their PCBU to comply with the WHS Act and Regulations.

Who is a worker?

Workers include:

· an employee

· a contractor or subcontractor

· an employee of a contractor or subcontractor

· an employee of a labour hire company who has been assigned to work in the person's business or undertaking

· an outworker

· an apprentice or trainee

· a student gaining work experience

· a volunteer

This definition is wider than the definition of “employee” in the NSW OHS Act 2000. However because of the deeming of worker provisions in the NSW OHS Act 2000 and court interpretation, the WHS Act definition is similar to current scope of coverage under the NSW OHS Act 2000.

However the duties of PCBUs to workers are different under the WHS Act because of

  • new duty holder categories of  PCBUs
  • the new consultation requirements
  • the expanded rights of workers.

Other persons

Duties of other persons at the workplace

A person at a workplace must:

  • take reasonable care for his or her own health and safety
  • take reasonable care that his or her acts or omissions do not
    adversely affect the health and safety of other persons
  • comply, so far as the person is reasonably able, with any
    reasonable instruction that is given by the PCBU in order to comply with the  WHS Act.

 

Do volunteers have a duty under the WHS Act?

Yes. The definition of a 'worker' includes a volunteer. Therefore, volunteer workers have the duty of workers under the new laws, for example, to take reasonable care for their own health and safety and comply with reasonable health and safety instructions.

The PCBU has the same duty for volunteers as any other worker, including consultation arrangements.