What is a PCBU?
Person(s) in Control of a Business or Undertaking is a new term used under the National Harmonisation of OHS Laws. The National OHS Laws are consistent laws for the Commonwealth, Queensland and New South Wales States and the Australian Capital and Northern Territories. The laws in each jurisdiction include the:
- Work Health and Safety Act 2011
- in some jurisdiction, a separate Act dealing with the transition issues from the old laws to the Work Health and Safety Act 2011
- Work Health and Safety Regulation 2011
- Codes of Practice (as adopted in each jurisdiction)
The definition of PCBU is much wider than the previous word “employer” used in the previous laws. The term “employer” continues to be used in the other States (Tasmania and South Australia, and Victoria and West Australia).
What type of entity is covered by the term PCBU?
PCBU can be a sole trader (for example a self-employed person), a partnership, company, unincorporated association or government department of public authority (including a municipal council). An elected member of a municipal council acting in that capacity is not a PCBU
It is the duty of an officer of a PCBU to exercise due diligence to ensure the PCBU complies with its health and safety duties and obligations.
An officer may be charged with an offence under the WHS Act independently of any breach of duty by the PCBU.
What id due diligence for an officer of a PCBU?
Due diligence includes personally taking reasonable steps to:
•acquire and keep current information on work health and safety matters
•understand the nature and operations of the work and associated hazards and risks
•ensure the PCBU has
- uses, appropriate resources and processes to eliminate or reduce risks to health and safety
- appropriate processes to receive and consider information about incidents, hazards and risks, and to respond in a timely manner
- and implements, processes for complying with their duties and obligations (e.g. reports notifiable incidents, consults with workers, complies with notices, provides training and instruction and ensures HSRs receive training entitlements).
What are the duties of a worker?
While at work, workers are required to take reasonable care:
- for their own health and safety
- the own health and safety of others who may be affected by their actions or omissions.
- cooperate with any reasonable instruction given by the PCBU
- comply with any reasonable policy or procedure of the PCBU
- comply with the WHS Act and WHS Regulation
What are the duties of other people at the workplace
Every person at a workplace, (customers and visitors included) must:
- take reasonable care of their own health and safety
- take reasonable care of the health and safety of others who may be affected by their actions or omissions.
Every person at a workplace must also cooperate with any actions taken by the PCBU to comply with the WHS Act and WHS Regulation.
Who is an officer of PCBU?
An Officer is broadly defined as a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the organisation’s activities. For a Company this is consistent with the definition of “officer” under the Corporations Act. PCBU includes a partner in a partnership and a sole trader.
An officer can also be an officer of the Crown or a public authority if they are a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking of the Crown or public authority.
- An elected member of a municipal council acting in the capacity of an elected representative is not an officer of the municipal council.
- A minister of a State, Territory or the Commonwealth is not an officer of a responsible agency of the state, territory or Commonwealth.
What training is there for PCBUs?
Individuals need training in the obligations as PCBU and the applying due diligence in at work. The training may be different depending on your role in the PCBU and this is acknowledged in the definition of due diligence.
What is the difference between a PCBU offences and employer offences?
Primarily the extension of PCBU obligations to officers makes the duties sit with all people involved rather than just the managers who were responsible for the work unit.