Frequently Asked Questions
You need to check the relevant legislation in your State and Territory, as the rules are different in each jurisdiction.
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Who is a PCBU under the WHS laws?
- A PCBU is a person conducting a business or undertaking.
- A ‘business or undertaking’ is intended to be read broadly and covers businesses and undertakings conducted by people including:
- employers;
- principal contractors;
- head contractors;
- franchisors; and
- the Crown.
- The law explicitly provides that a self-employed person is a PCBU as they must ensure their own health and safety while at work.
- Generally the following entities are excluded from the definition of a PCBU:
- people engaged solely as workers or officers of the business or undertaking;
- a volunteer organisation without any paid employees;
- strata title body corporates; and
- people that engage contractors on an ad hoc basis such as parents that engage casual babysitters.
- If however a person engages a contractor on a regular basis they may be a PCBU. This may apply for example if you have engaged someone to mow your lawn every week.
- If you have any concerns you can use our free and anonymous Ask a Lawyer service to get information specific to your situation.
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What are general duties of a PCBU with respect to work, health and safety?
- The general duties of a person conducting a business or undertaking (‘PCBU’) are:
- to provide for the health and safety of workers and others so far as is reasonably practicable;
- to provide a safe work environment;
- to provide and maintain safe plant and procedures;
- to ensure plant and chemicals are used, transported and stored safely;
- to provide adequate facilities for the welfare of workers such as:
- bathrooms;
- lunch rooms; and
- rest areas;
- to provide proper training, work instructions and supervision;
- to conduct regular health monitoring of workers; and
- to consult with workers on matters relating to their health, safety and wellbeing.
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Who is a worker under the WHS laws?
- A worker is defined as any person that carries out work in any capacity for a person conducting a business or undertaking and includes the following people:
- employees;
- contractors and subcontractors;
- employees of contractors and subcontractors;
- employees of a labour hire company;
- outworkers;
- apprentices and trainees;
- students gaining work experience; and
- volunteers.
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What are the general WHS duties of workers in the workplace?
- A worker must among other things:
- take reasonable care for their own health and safety;
- comply with any reasonable instructions issued to them by the person conducting the business or undertaking (‘PCBU’); and
- comply with any reasonable health and safety policies or procedures in the workplace.
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What duties do employers owe to contractors?
- The WHS legislation does not distinguish between the obligations that are owed to contractors and ordinary workers.
- This means that the duty of care owed by the person conducting the business or undertaking (‘PCBU’) is identical for both employees and contractors. However this duty is limited to matters over which the PCBU has control.
- This dispels the popular belief that employers can avoid their safety obligations by outsourcing riskier work to contractors.
- You can use our Phone a Lawyer service for a preliminary legal consultation if you think you may need legal advice.
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Are employers liable for injuries sustained by visitors to the workplace?
- Yes. The law states that the person conducting the business or undertaking (‘PCBU’) must provide for workers and others to be protected from the risk of harm.
- Visitors to the workplace are generally considered to come within the meaning of ‘others.’
- Visitors are obliged to take reasonable care for their own safety and for the safety of those around them.
- Visitors are also obliged to comply with any reasonable orders or instructions of the PCBU.
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Do volunteer associations fall within the definition of a PCBU?
- A volunteer association will be excluded from the definition of a person conducting a business or undertaking (‘PCBU’) where:
- the association is comprised of a group of volunteers that work together for community purposes; and
- none of the volunteers are engaged by any other person to carry out work for the association.
- If the association employs staff as well as volunteers such as a retail organisation like an Op-shop then the organisation will be a PCBU and will be required to comply with WHS duties with respect to the volunteers.
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What is ‘reasonably practicable’ with respect to work, health and safety?
- People conducting a business or undertaking (‘PCBUs’) are not expected to prevent all workplace incidents from occurring. They are only expected to do what is ‘reasonably practicable’ in the circumstances to eliminate or reduce the likelihood of harm.
- In determining what is reasonably practicable a PCBU must take into account:
- the likelihood of identified hazards occurring;
- the degree of harm that might result from the hazard or risk; and
- the availability of suitable controls that can reasonably be put into place to eliminate or minimise the risk of harm.
- After assessing the extent of the risk and the ways the risk could be eliminated or minimised the associated costs must be considered including whether the cost is grossly disproportionate to the risk.
- You can use our LegalPlan™ membership service to call for tenders from experienced lawyers who may be able to assist you with this issue.
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What happens if there is a disagreement in relation to a WHS matter during consultation?
- While the WHS legislation obliges a person conducting the business or undertaking (‘PCBU’) to consult with workers on matters affecting their health and safety at work there is no obligation for workers and PCBUs to reach an agreement before a decision is made.
- If the reason for disagreement with the PCBU is because the workers hold a genuine and reasonable concern about their health and safety as a result of any changes proposed the worker is legally entitled to stop work and refer the matter to the external work, health and safety regulator for their state. These are:
- This can create serious disruptions to the productivity of the workplace and foster a negative workplace safety culture. It is therefore encouraged that a collaborative approach be taken when making decisions with respect to workers’ health and safety to reduce the likelihood of a disagreement.
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