The Work Health and Safety Act 2011 introduced the term Person Conducting a Business or Undertaking (PCBU). The PCBU will have the primary duty of care under the Act, as well as other duties and obligations.
What or Who is a PCBU?
The term PCBU is a broad one that is used to describe all types of modern working arrangements, which are commonly referred to as businesses. PCBUs are expected to meet their obligations to ensure the health and safety of workers and/or volunteers, and other people, such as visitors to their workplace so far as is reasonably practicable.
This term was created to reflect the fact that those who conduct business or undertakings can influence the way work is carried out, therefore affecting the health and safety of those who are performing that work or are affected by the work undertaken.
Business vs. Undertaking
A business or undertaking is any activity that is carried out by, or under the management of, one person or more, or an organisation. They can be differentiated as such:
- Business – typically conducted to make a profit. Businesses have a degree of organisation, system and continuity.
- Undertaking – not conducted for profit; not commercial in nature. Undertakings have elements of organisation, systems, and possible continuity.
Examples of businesses include, but are not limited to:
- Public and private companies
- Sole proprietors
- Partners engaged in a business partnership
- Self-employed individuals
- Schools and universities
- Franchisees and franchisors
Examples of undertaking include, but are not limited to:
- Government departments or agencies
- Charitable organisations
- Social or sporting organisations
There are people and organisations that are not considered PCBUs, such as volunteer associations (if there are no workers employed to do the work), those engaged solely as workers or employees of a PCBU, or organisations that are purely social, not commercial, in nature.
What is Duty of Care?
Primary duty of care refers to the primary responsibility of a business to ensure the health and safety of their workers and those affected or influenced by its work. The PCBU is also responsible for ensuring that execution of the work does not put others at risk.
The primary duty of care of a PCBU includes:
- The provision and maintenance of a safe work environment;
- The provision and maintenance of safe plant and structures;
- The provision and maintenance of safe systems of work;
- The safe use, handling and storage of plant, structures and substances are ensured;
- The provision of adequate facilities for the workers’ welfare and ensuring access to the facilities is maintained;
- The provision of instruction, training, information and supervision in order to protect all persons from risks to their health and safety arising from the work of the business; and,
The careful observation of workers’ health and workplace conditions in order to prevent injury or illness of workers when carrying out work for the business.
What is Reasonably Practicable?
In the context of duty of care as a PCBU, ‘reasonably practicable’ means that which is, or was, reasonably able to be done to ensure health and safety. This takes relevant matters into consideration, such as:
- The likelihood of the relevant risk occurring;
- The degree of harm that might result from the hazard or risk;
- What the person concerned knows, or should reasonably know, about the hazard or risk, and methods of eliminating or reducing the risk; and,
- The availability and suitability of the methods of eliminating or reducing the risk.
Only after taking the above-mentioned into consideration can a PCBU consider the cost associated with the methods of eliminating or reducing the risk, including whether the cost is grossly disproportionate to the risk.
Criminal Offence Penalties and Fines
As per the WHS Act, there are 3 categories of criminal offence penalties which apply for breaches of work health and safety duties:
- Category 1 – covers reckless conduct that exposes others to a risk of death, serious injury or illness without reasonable excuse.
The maximum penalty for a corporation under this category is $3 million. For an individual as a PCBU or as an officer of a PCBU, the penalty is $600,000 or 5 years imprisonment or both.
- Category 2 – covers failure to comply with a health and safety duty that exposes others to a risk of death, serious injury or illness.
The maximum penalty for a corporation under this category is $1.5 million. For an individual as a PCBU or as an officer of a PCBU, the penalty is $300,000.
- Category 3 – covers failure to comply with a health and safety duty.
The maximum penalty for a corporation under this category is $500,000. For an individual as a PCBU or as an officer of a PCBU, the penalty is $100,00.