In the past we have seen all kinds of interpretations of what a PCBU actually is, many of which are incorrect. In this blog we will attempt to establish exactly what a PCBU is, what’s the exposure and how it might look in your business.
Worksafe NSW define a PCBU as A person conducting a business or undertaking, a broad term used throughout work health and safety legislation to describe all forms of modern working arrangements, which we commonly refer to as businesses.
A Person Conducting a Business or Undertaking. And in many case a “Person” may not actually mean an individual person at all. In the Interpretive Guidelines published by SafeWork Australia bold lettering states “A ‘person’ may be an organisation or an individual”
A ‘person’ is defined in laws dealing with interpretation of legislation to include a body corporate company), unincorporated body or association and a partnership. An individual is also a ‘person’, but will only be a PCBU where that individual is conducting the business in their own right as a sole trader or self-employed person. Individuals who are in a partnership that is conducting a business will individually and collectively be a PCBU.
Section 5 (4) of the Work Health and Safety Act 2011 makes it clear that an individual is not a PCBU if they are involved in the business or undertaking only as a worker or officer of the business or undertaking.
So to simplify the whole thing let look at a few examples of a PCBU.
Andrew owns his own plumbing business, servicing a small community on the south coast of NSW. Andrew is Self Employed and therefore under the Model WHS ACT 2011 is considered to be a PCBU.
Dave owns a butcher shop. He is the only owner and is registered as a Sole Trader. Dave employees two other butchers and 3 front counter salespeople. Dave is a PCBU.
Jeff and Mark own a similar butcher shop. They registered their business as a Company. They also employ two other butchers and 2 front counter salespeople. Jeff and Mark are not PCBU, their business is the PCUB. Jeff and Mark are directors of a PCBU and as such have strict obligations under law as directors.
John and Jane also own a butchery. They are registered as a Partnership. They are recognised individually as PCBU’s, and this is where it can become confusing as they are also recognised collectively as a PCBU. The obligations under law do not change weather we look at John and Jane individually or collectively.
Robert is the CEO of Wesfarmers, Australia’s largest employer with approximately 220,000 people. Wesfarmers is a Publicly list Company. Robert is not a PCUB, rather he is the CEO of a PCBU. As the CEO he is accountable for many things including share value, profit and loss and most importantly the safety of his 220,000 employees.
The reason for this particular blog is we recently had a safety officer contact us asking about his responsibilities as a PCBU. After a brief conversation we established he wasn’t actually the PCBU at all. During his training in WHS Cert IV he had been somewhat overwhelmed by the flood of information and become confused as to roles and responsibilities within an organisation.
So, it doesn’t actually matter about the size of the business. It’s more to do with the structure of the business. It should be noted that while a registered company is considered to be the PCBU the directors of that PCBU will be held accountable for the safety of the Staff, Employees and the general public.