The term ‘Person Conducting a Business or Undertaking’, which is often shortened to ‘PCBU’, is used in the national harmonised Work Health and Safety (WHS) laws and replaces the term ‘employer’ used under the previous WHS laws in each State and Territory.
The national WHS laws have been adopted by the Commonwealth, Queensland, New South Wales, Tasmania, Western Australia and both the Australian Capital and Northern Territories. The legal obligations can be found in each of these jurisdictions most commonly in the following sources:
- The Work Health and Safety Act 2011 in each State or Territory, or its equivalent, such as the Work Health and Safety Act 2020 (Western Australia) and the Work Health and Safety Act 2012 (Tasmania).
- In some jurisdictions, a separate Act dealing with the transition from the State’s previous WHS laws to the Work Health and Safety Act in that State or Territory.
- Work Health and Safety Regulations in each state that support the Act, such as the Work Health and Safety Regulations 2011 in New South Wales and the Work Health and Safety Regulations 2022 in Western Australia. Western Australia also has separate regulations that cover the mining industry: the Work Health and Safety (Mines) Regulations 2022.
- Codes of Practice adopted and published in each State and Territory.
Please note that States and Territories update their Acts, Regulations and Codes of Practice regularly and it is important to ensure that you are using the up-to-date version. There are also other Acts, Regulations and Codes of Practice that apply to specialist work in each State and Territory.
Even though Victoria has not introduced the harmonised laws, and the Occupational Health and Safety Act 2004 (Vic) continues to apply in Victoria, the Victorian laws were used as the basis for the harmonised laws that now apply in the rest of Australia. This means that whilst some terms in the Victorian laws may be different to those in the harmonised laws in other States and Territories in Australia, the intent is essentially the same in the Victorian laws.
Definitions under the WHS laws
The definition of ‘PCBU’ is wider than the definition of ‘employer’ that was used in the old laws. The term ‘employer’ continues to be used in Victoria.
A PCBU can be any of the following: an employer, a contractor, a principal, a labour hire provider, a designer, a constructor, a manufacturer, a supplier, a firm, a company, an agency, the individual members of a partnership or an individual/sole trader. There can be multiple PCBUs in the same workplace and they can have the same duties to the same workers doing the same work.
The definition of ‘worker’ is wider than the definition of ‘employee’ that was used in the old laws. The term ‘employee’ continues to be used in Victoria.
The definition of ‘worker’ includes not just direct employees but also includes contractors and the individuals they engage, subcontractors and the individuals they engage, labour hire workers, visitors to site (such as suppliers and clients) and, in some circumstances, volunteers.
An ‘officer’ of a PCBU is an individual who has the capacity to significantly affect the PCBUs financial standing. A worker can be an officer, however an individual officer is not a PCBU themselves.
Duties under the WHS laws
The responsibilities of PCBUs, officers and workers are each referred to under the WHS laws as a ‘duty’, which you may also have heard called a ‘duty of care’ and this is a concept that is woven through all WHS and environmental protection laws.
A PCBU has a duty 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 in carrying out work are influenced or directed by the PCBU, while the workers are at work in the PCBU and safeguard all other persons who may be affected by the operations of the PCBU.
Officers have a duty, so far as reasonably practicable, to satisfy themselves that the PCBU has discharged its duties around work health and safety in the workplace, as well its duties regarding the environmental impacts of the PCBU’s activities.
Workers have a duty to take reasonable care of their own health and safety, and the health and safety of others, in the workplace
Each duty must be discharged to the extent that is ‘reasonably practicable’ which is defined in the various WHS laws as taking into account and weighing up all relevant matters, including:
- The likelihood of the hazard or risk concerned occurring;
- The degree of harm that might result from the hazard or risk;
- What the PCBU knows or ought to reasonably know about the hazard or risk and ways of eliminating or minimising it;
- The availability and suitability of ways to eliminate or minimise the risk; and
- Only after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the PCBU can consider the cost associated with the available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
Please note that it is not permissible to allow high risk work to be done unsafely just because the hazards are too expensive to fix. It may be the case that a PCBU will decide that the cost of making high risk tasks safe to perform will be so significant that it may need to make the decision to eliminate the work.
Duty of a PCBU/employer to consult, cooperate and coordinate
Each PCBU must consult, cooperate and coordinate with all other PCBUs and individuals who have the same or overlapping WHS and environmental protection duties (e.g. with other PCBUs such as clients, designers, contractors, subcontractors, labour hire providers and others). This is important because it gives each PCBU an understanding of what each PCBU is responsible for in relation to each workplace and each piece of work and prevents important safety and environment issues from falling between the cracks.
A PCBU must also consult with workers so as to give them a reasonable opportunity to express their views, raise WHS issues and contribute to the decision-making process. The workers’ views must be taken into account and they must be advised of the outcome in a timely manner.
Principal Contractors (construction)
Construction work is defined in the WHS Regulations as any work carried out in connection with the construction, alteration, conversion, fitting-out, commissioning, renovation, repair, maintenance, refurbishment, demolition, decommissioning or dismantling of a structure.
Either automatically because it involves construction work, or where construction work falls within the definition of a ‘construction project’ in a State or Territory, a PCBU will be appointed as the principal contractor for the construction work under the applicable WHS laws.
Construction project is defined in the WHS Regulations as a construction project that involves construction work where the cost of the construction work exceeds a set amount. In the Commonwealth, New South Wales, Queensland, Western Australia, Tasmania and the Australian Capital Territory this amount is $250,000. In Victoria, it is $350,000, in South Australia it is $450,000 and in the Norther territory it is $500,000.
However, a client can appoint another PCBU as a principal contractor by authorising them to have management or control of the workplace where the construction work will take place.
It is recommended that any authorisation or appointment regarding the principal contractor be documented and signed by the relevant parties to ensure clear definition of roles.