The new Work Health and Safety Act 2020, has introduced the term ‘person conducting a business or undertaking’ (PCBU).
PCBU is the term given to a person conducting a business or undertaking alone or with others, whether or not for profit or gain.
Who is considered a PCBU?
A PCBU can be a sole trader such as a self-employed person, each partner within a partnership, a company, an unincorporated association or government department of public authority, including a municipal council.
Francis Burt Chambers Barrister Cavaliere Maria Saraceni said ‘person’ referred to either a corporate entity or an individual person and, while a ‘business’ was self-explanatory, an ‘undertaking’ was for the government sector or a not-for-profit that may not consider they are running a business.
Obligations imposed on the PCBU
The Act places the primary obligation on a PCBU to ensure, so far as is reasonably practicable, the health and safety of workers while at work.
This specifically includes:
1. The provision and maintenance of a working environment that is safe and without risks to health, including safe access to and exit from the workplace.
2. The provision and maintenance of plant, structure and systems of work that are safe and do not pose health risks (for example, providing effective guards on machines and regulating the pace and frequency of work).
3. The safe use, handling, storage and transport of plant, structure and substances (for example, toxic chemicals, dusts and fibres).
4. The provision of adequate facilities for the welfare of workers at work (for example, access to washrooms, lockers and dining areas).
5. The provision of information, instruction, training or supervision to workers needed for them to work without risks to their health and safety and that of others around them.
6. That the health of workers and the conditions of the workplace are monitored to prevent injury or illness arising out of the conduct of the business or undertaking.
7. The maintenance of any accommodation owned or under their management and control to ensure the health and safety of workers occupying the premises.
“The duties of a PCBU are very similar to what’s in the previous Act and that is to do with what is reasonably practicable to ensure and maintain a working environment in which workers are not exposed to hazards,” Ms Saraceni said.
“’Workers’ is a wider definition than employee, it includes persons who are providing labour and extends to subcontractors, volunteers, trainees and more.
“There are also obligations on the PCBU to do what is reasonably practicable to ensure that the way it runs its business or undertaking does not adversely affect others who will come in contact with it.
“This obligation is less known but it is very broad and encompasses obligations owed by businesses to those other than its staff – think of the incidents such as that involving Ian Ward, the remand prisoner who died while being transported within Western Australia, and the Dreamworld disaster in Queensland.
“In both of these incidents, the regulator prosecuted those that breached their duty of care.
“An example is, if you happen to be running a school. Other than the workers, you have parents who come to drop kids off, you have visitors or volunteers attending, you have students attending, so you have a duty of care to each of those categories of persons to proactively eliminate or, as a minimum, minimise the risks posed by your school (or business) and the manner in which you run it.”
Proactive versus reactive
Ms Saraceni said the main difference with the new legislation was that the PCBU was required to manage risks and be proactive by eliminating risks to the extent that is reasonably practicable, or otherwise minimising those risks to the extent that is reasonably practicable, rather than being reactive once a risk had manifested in a workplace incident or similar.
“After an incident, it's very easy to work out what could have, should have, would have been done to avoid the incident,” she said.
“The important thing is to be proactive, identify the risks beforehand and put appropriate measures in place to manage those risks."
“For example, you have a fleet of cars – are the cars electric, hybrid or fuel operated?
“Are they regularly maintained and checked by an appropriately qualified mechanic or does it need a different expertise?
“Are the cars fit for purpose and do you have paperwork confirming this?
“Are your workers appropriately licensed to drive that vehicle and are they fit to drive?
“Or, if you have machinery operating on the mines – who ensures that they, and each of their parts, are in a condition to be used as per the manufacturer’s manual?
“Who checks that the tyres are changed out when needed and who ensures the maintenance or the repairs of the machinery are done and recorded appropriately?
“They are examples of risk management information that you would be looking at.”
Get your ducks in a row
To ensure compliance, Ms Saraceni said the first thing the PCBU should do was know the law, the regulations, the Australian and New Zealand Standards, the Codes of Practice and the guidelines issued by the regulator, as well as how they impacted on its business or undertaking.
“Now you cannot have insurance to pay a WHS fine. This means the imposition of a fine – and the fines are now much higher – are something that you, or the company, would have to bear personally,” she said.
“If an individual is found guilty and a WHS fine is imposed and there isn’t sufficient cash to pay the fine, your personal property could be up for grabs.
“If a corporate entity is fined, then it has to pay.
“The only type of insurance a company or director can have is to pay for, or reimburse, their legal fees to help them in a court case or the investigation.”
The second thing is you really need to know your business, according to Ms Saraceni.
“Most directors at board meetings get told statistics about how many people have been injured at work, how many lost time injuries there are or the record of injury-free days, and people think that helps the board understand what the business’s preparedness is for managing health and safety risk,” she said.
“But that sort of information is only really relevant for workers compensation purposes.
“The information the directors are provided should be more than just what the workers compensation statistics are – it should be identifying risks in the business.
“They also need to be aware of what might be happening in their industry and in fellow companies around the state, Australia or around the world.
“If you’re a mining company and you know that something's happened in Brazil on your minesite, and you know that you're using the same system of work in Western Australia, then the information from what has happened in Brazil is something you should be incorporating into your business here as well.”
This article is part of AIM WA’s Work Health and Safety Act series, where we discuss the ins and outs of the new Act and provide guidance to make sure your company is adhering to the latest rules and regulations. Other articles in the series include:
WHS Act 2020 key terms and definitions
Changing the face of health and safety in Western Australia