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Business

Questions

 

Q: What is a PCBU?

A PCBU is a ‘person conducting a business or undertaking’. While a PCBU may be an individual person or an organisation, in most cases the PCBU will be an organisation (for example, a business entity such as a company).

An individual, such as a sole trader, can also be a PCBU.

While the terms ‘business’ and ‘undertaking’ are not defined in HSWA, the usual meanings of these terms are:

  • ‘business’: an activity carried out with the intention of making a profit or gain
  • ‘undertaking’: an activity that is non-commercial in nature (eg certain activities of a local authority).

Examples of PCBUs:

Individuals or organisations can be PCBUs if they carry out work, regardless of their legal structure. Examples of PCBUs are:

  • A business in the form of an incorporated company.
  • A sole trader or self-employed person.
  • A general partner in a partnership (if the partnership is a limited partnership).
  • A partner in a partnership (if the partnership is not a limited partnership).
  • An organisation created by legislation (eg government department, university, school or local authority).

 

Q: Who is not a PCBU?

The following are not PCBUs:

  • volunteer associations
  • home occupiers who employ or engage someone to do work around the home
  • persons to the extent they are solely a worker or an officer in the business or undertaking
  • statutory officers to the extent they are officers or workers in the business or undertaking
  • other persons declared by regulations not to be PCBUs for the purposes of HSWA or any provision of the Act.

Example:

Kitchen Construction Limited (KCL) operates a small business which specialises in building and renovating kitchens. Simon is KCL’s sole director. KCL employs several full-time staff and regularly contracts Jill, a self-employed electrician, to do electrical work for KCL’s projects.

  • KCL is a PCBU conducting the business of building and renovating kitchens.
  • KCL’s employees are workers of KCL (so are not PCBUs).
  • Simon is an officer of KCL (so is not a PCBU).
  • Jill is a PCBU conducting her electrical business.
  • Jill is also a worker of KCL because she is engaged by KCL to complete electrical work on KCL’s projects.

 

Q: What is the primary duty of care?

A PCBU must ensure, so far as is reasonably practicable, the health and safety of workers and that other people are not put at risk by its work. This is called the ‘primary duty of care’.

This means ensuring, so far as is reasonably practicable:

  • the health and safety of workers who work for the PCBU (eg employees or contractors, including their subcontractors or workers) while they are at work in the business or undertaking
  • the health and safety of workers whose work activities are influenced or directed by the PCBU while the workers are carrying out the work (eg a franchise company whose franchise requirements influence or direct the workers of the franchisee).
  • that other persons are not put at risk by the work of the business or undertaking (eg a visitor to the workplace, or members of the public who could be affected by a work activity).

A PCBU who is a self-employed person must also ensure, so far as is reasonably practicable, his or her own health and safety while at work.

Specific obligations:

The primary duty of care is a broad overarching duty. It includes but is not limited to, so far as is reasonably practicable:

  • providing and maintaining a work environment that is without risks to health and safety
  • providing and maintaining safe plant and structures
  • providing and maintaining safe systems of work
  • ensuring the safe use, handling and storage of plant, structures and substances
  • providing adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities
  • providing any information, training, instruction, or supervision that is necessary to protect all people from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking
  • monitoring the health of workers and the conditions at the workplace for the purpose of preventing injury or illness of workers arising from the conduct of the business or undertaking.

PCBUs must also maintain any worker accommodation that is owned or managed by the PCBU and provided because other accommodation is not reasonably available. The accommodation must be maintained so the worker is not exposed to health and safety risks.

 

Q: Who has the primary duty to ensure health and safety?

All PCBUs have the primary duty of care.

 

Q. Is a registered charity a legal entity under HSWA?

HSWA does not define legal entities, it only defines a Person Conducting a Business or Undertaking (PCBU). The legal form of a PCBU is not relevant in terms of its coverage by, and duties under, HSWA. If an organisation meets the definition of a PCBU it has the duties of a PCBU regardless of its legal construct.

 

Is my business in the 'high risk'category?

There is a legal ‘high-risk’ category which has special rules about health and safety representatives (HSRs) and health and safety committees (HSCs). (Refer to HSWA s62(4b) and s66(3b)).

Specifically:

The high-risk sectors or industries this relates to are defined using the Australia New Zealand Standard Industry Classification (ANZSIC) codes, and include the following:

  • A02 Aquaculture
  • A03 Forestry and logging
  • A04 Fishing, hunting, and trapping
  • B06 Coal mining
  • C11 Food product manufacturing
  • D28 Water supply, sewerage, and drainage services
  • D29 Waste collection, treatment, and disposal services
  • E30 Building construction
  • E31 Heavy and civil engineering construction
  • E32 Construction services.

 

Within these codes there are some sub-sectors and industries that are excluded. Because they are excluded, businesses in the sub-groups only have to follow up on a request for an HSR or HSC if they have more than 20 workers.

If you're not sure which industry code your business belongs to, you can:

 

Can't find the answer to your question?

We're regularly answering lots of questions about the new law. If you can't find what you're looking for here, take a look through our other question and answer categories.

If you still can't find an answer to your question, you can ask us a question online

Last updated 19 May 2016

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