Work Health
& Safety

A Person Conducting a Business or Undertaking (PCBU) is a broad term used through work health and safety legislation to describe many forms of businesses.

As a PCBU, you hold the primary duty of care to ensure workers and others are not exposed to a risk to their health and safety.

As a PCBU, there is a requirement to, as far as is reasonably practicable, ensure the health and safety of workers and other people like volunteers and visitors. There is also a requirement to have open and genuine consultation with your workers about work health and safety matters.

The best mechanism as a PCBU is to ensure all workers are receiving regular training and understand work health and safety training. Records should be maintained and kept up to date to show when workers have completed relevant training.

PCBU’s may also look to undertake periodic assessment of employees to measure ongoing knowledge and competence. This will also highlight areas of weakness for individuals and allow for ongoing training for workers where required.

A worker is defined as any person that carries out work in any capacity for a PCBU. This includes:

• Employees,
• Contractors and sub-contractors.
• Employees of sub-contractors.
• Labour hire employees,
• Outworkers,
• Apprentices,
• Volunteers, and
• Work experience students.

As such, it is critical to understand your duties as a PCBU apply to not just employees, but a variety of different people who are at your workplace. A workplace is a place of work where work is carried out for a PCBU and includes any place where a worker goes, or is likely to be.

Section 19 of the Work Health and Safety Act states that a PCBU’s primary duty of care is to so far as reasonably practicable, to ensure the health and safety of:

1. workers engaged, or caused to be engaged by the person, and
2. workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.

A PCBU must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

A PCBU must ensure, so far as is reasonably practicable:

1. the provision and maintenance of a work environment without risks to health and safety, and
2. the provision and maintenance of safe plant and structures, and
3. the provision and maintenance of safe systems of work, and
4. the safe use, handling, and storage of plant, structures and substances, and
5. the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, and
6. the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and
7. that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.

PCBU’s owe a duty to provide and maintain a safe working environment which includes consideration in respect of:

1. Lighting;
2. Workplace layout;
3. Entries and exits;
4. Floors and surfaces;
5. Work areas;
6. Fixtures and fittings; and
7. Ventilation.

A PCBU’s obligation extends to cover workers that work from home or in isolation.

Section 28 of the Work Health and Safety Act states, while at work, a worker must:

1. take reasonable care for his or her own health and safety, and
2. take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and
3. comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and
4. co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.

Workers have the obligation ensure that they work safely, follow instructions and ask questions if they are not sure how to safely perform the work.

Section 29 of the Work Health and Safety Act states:

A person at a workplace (whether or not the person has another duty) must

1. take reasonable care for his or her own health and safety, and
2. take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and
3. comply, so far as the person is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person conducting the business or undertaking to comply with this Act.

Any person at a workplace, such as a visitor or customer must take reasonable care of their own health and safety. These persons may be affected by their acts and omissions in the case of an incident.

Invitees must also comply with, so far as reasonably practicable any reasonable instruction that is given by the PCBU.

Pursuant to section 35 of the Work Health and Safety Act, a notifiable incident is:

1. the death of a person, or
2. a serious injury or illness of a person, or
3. a dangerous incident.

A serious injury or illness of a person means an injury or illness requiring the person to have:

1. immediate treatment as an in-patient in a hospital, or
2. immediate treatment for—
   1. the amputation of any part of his or her body, or
   2. a serious head injury, or
   3. a serious eye injury, or
   4. a serious burn, or
   5. the separation of his or her skin from an underlying tissue (such as degloving or scalping), or
   6. a spinal injury, or
   7. the loss of a bodily function, or
   8. serious lacerations, or
3. medical treatment within 48 hours of exposure to a substance,

and includes any other injury or illness prescribed by the regulations but does not include an illness or injury of a prescribed kind.

A dangerous incident means an incident in relation to a workplace that exposes a worker or any other person to a serious risk to a person’s health or safety emanating from an immediate or imminent exposure to:

1. an uncontrolled escape, spillage or leakage of a substance, or
2. an uncontrolled implosion, explosion or fire, or
3. an uncontrolled escape of gas or steam, or
4. an uncontrolled escape of a pressurised substance, or
5. electric shock, or
6. the fall or release from a height of any plant, substance or thing, or
7. the collapse, overturning, failure or malfunction of, or damage to, any plant that is required to be authorised for use in accordance with the regulations, or
8. the collapse or partial collapse of a structure, or
9. the collapse or failure of an excavation or of any shoring supporting an excavation, or
10. the inrush of water, mud or gas in workings, in an underground excavation or tunnel, or
11. the interruption of the main system of ventilation in an underground excavation or tunnel, or
12. any other event prescribed by the regulations,
13. but does not include an incident of a prescribed kind.

SafeWork must be notified immediately after you become aware that a notifiable incident arising out of the conduct of the business or undertaking has occurred. The notification must be either in writing or by telephone, whichever is the fastest possible means.

A PCBU must establish a health and safety committee for the business or undertaking or part of the business or undertaking:

1. Within 2 months after being requested to do so by –
   1. a health and safety representative for a work group of workers carrying out work at that workplace, or
   2. 5 or more workers at that workplace, or
2. If required by the regulations to do so, within the time prescribed by the regulations.

The functions of the committee are:

1. to facilitate co-operation between the person conducting a business or undertaking and workers in instigating, developing and carrying out measures designed to ensure the workers’ health and safety at work, and
2. to assist in developing standards, rules and procedures relating to health and safety that are to be followed or complied with at the workplace, and
3. any other functions prescribed by the regulations or agreed between the person conducting the business or undertaking and the committee.

A Health & Safety Committee can be an effective way to consult with workers on the same matters across different work groups or workplaces and where there are several PCBU’s with responsibility for the same health and safety matters.

An enforceable undertaking is a legally binding agreement between SafeWork and the person that proposes the undertaking. The person making the undertaking (the PCBU) is obliged to carry out all activities outlined in the undertaking.

An enforceable undertaking will only be accepted if it demonstrates three main principles: the undertaking benefits:

1. the workplace;
2. their industry; and
3. the community.

When a proposed enforceable undertaking is accepted, any legal proceedings connected to the alleged contravention is discontinued. Where legal proceedings have not been started, if the person making the undertaking carries out the activities, no proceedings will be started.

The benefits of an enforceable undertaking are it:

1. provides for significant and on-going commitments that aim to achieve improved WHS and compliance;
2. provides an opportunity for organisational reform; and
3. provides an opportunity for the person to communicate to their industry peers and the community generally about the consequences of unsafe work practices and the opportunities that putting in place safe work practices can bring.

An enforceable undertaking must include:

1. particulars about the person proposing the enforceable undertaking;
2. details of the contravention or alleged contravention;
3. an acknowledgment that the regulator has alleged a contravention has occurred;
4. a statement of assurance about future WHS behaviour; and
5. a statement of regret that the incident occurred.