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The principal duty holder is a ‘person conducting a business or undertaking’ and replaces the term ‘employer’. PCBUs include the Commonwealth, Commonwealth Authorities, non-Commonwealth licensees, principal contractors, and will, in some cases, necessitate an analysis to understand who is a PCBU in a particular factual context under the new WHS laws.

The duty imposed on a PCBU is probably the most significant conceptual change from the majority of previous OHS Acts. For the public sector, it means that every activity that could give rise to a risk is captured in both policy and operational.

This change is aimed at ensuring that the WHS Act coverage extends beyond the traditional employer / employee relationship to include new and evolving work arrangements and risks.

The WHS Act also places specific upstream duties on PCBUs who carry out specific activities:

  • persons with management or control of a workplace/fixtures, fittings and plant
  • designers, manufacturers, importers, suppliers and PCBUs that install construct or commission plant or structures.
  • Duties extend to any PCBU who is contributing to work has a duty of care – this can be more than one duty in relation to specific activities

‘Volunteer association’ (as defined) is not treated as a business or undertaking.

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