A ‘person conducting a business or undertaking’ (PCBU – the new term that includes employers) may be an individual person or an organisation conducting a business or undertaking. An officer is a person who makes decisions, or participates in making decisions, that affect the whole, or a substantial part, of a business or undertaking and has the capacity to significantly affect the financial standing of the business or undertaking. If a person is responsible only for implementing those decisions, they are not considered an officer. Partners of a partnership are not officers but are PCBUs. An officer of a PCBU must exercise due diligence to ensure that the PCBU complies with their duties under the WHS legislation.
You are considered to be an officer if you are:
• an officer within the meaning of section 9 of the Corporations Act 2001
• an officer of the Crown within the meaning of section 247 of the model Work Health and Safety (WHS) Act
• an officer of a public authority within the meaning of section 252 of the model WHS Act.
Examples of PCBUs who are individuals include:
- partners in partnerships
- sole traders and self-employed people
- individual trustees of trusts (as with some family businesses)
- committee members of unincorporated associations if they employ someone.
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)
- independent schools
A health and safety duty is owed by a PCBU if it:
- arranges, directs or influences work to be done
- contributes something towards the work being done.
This duty also applies to:
- principals, contractors and sub-contractors within the supply chain such as in the construction and transport industries
- franchisors and the franchisees that use the franchisors’ business systems such as fast food outlets.
A PCBU is not the individual worker or officer and does not apply to purely social, domestic or recreational activities.