PCBU: who it covers and what it must do under WHS law

A PCBU, or person conducting a business or undertaking, is the person or entity that runs a business or undertaking. That includes companies, sole traders, self-employed people and government bodies. Under section 19 of the WHS Act, a PCBU has a primary duty to keep workers and others safe so far as is reasonably practicable. Leaders carry out that duty through risk management, consultation and the example they set from the top.

Who is a PCBU?

The term is deliberately broad. It covers the entity that controls the work, not just the employer. A PCBU can be:

• an employer, including a company, partnership or sole trader with staff;
• a self-employed person or independent contractor;
• a principal contractor or subcontractor on a site;
• a labour hire company;
• a person who manages or controls a workplace, such as a premises owner or facility manager;
• a designer, manufacturer, importer or supplier of plant or substances used at work.

A workplace can have more than one PCBU at the same time. A builder, its subcontractors and the owner of the site may all carry duties for the same work. Each has to do what it can to manage the risks it controls, and each must talk to the others.

What is the primary duty of care?

Section 19 of the WHS Act requires a PCBU to ensure, so far as is reasonably practicable, that the health and safety of workers and other people is not put at risk by the work it carries out. The duty covers the workers you employ, the contractors and labour hire staff you engage, and visitors, customers and members of the public who could be affected.

The duty is qualified by "reasonably practicable", which is not the same as a guarantee that nothing will go wrong.

What is reasonably practicable?

Under the Act, reasonably practicable means what can reasonably be done in the circumstances. You weigh up:

• how likely the harm is and how serious it would be;
• what you knew, or ought to have known, about the hazard and the ways to control it;
• the availability and suitability of the controls; and
• the cost of those controls, compared with the risk they remove.

Cost matters, but it doesn't excuse a control that's cheap, available and effective. The more serious the potential harm, the more you're expected to spend to prevent it.

What else a PCBU must do

The primary duty sits alongside more specific obligations. The main ones are:

• Manage risks. Identify hazards, assess the risks and apply controls. The model Code of Practice on managing WHS risks sets out the process. Use the hierarchy of controls to choose the control.
• Review controls. Review them when a control isn't working, before a workplace change, when a new hazard appears, or when a health and safety representative asks. That's the trigger list in regulation 38.
• Consult workers. You must consult workers and their health and safety representatives on matters that affect their safety, under section 47 of the Act.
• Provide information, training and supervision. Workers need to know the hazards, the controls and how to work safely.
• Keep licences and registrations current. Where high-risk work or plant needs a licence or registration, it must be in place before the work starts.
• Provide welfare and facilities. Toilets, drinking water, first aid and rest areas where the work requires them.
• Coordinate with other PCBUs. Where you share a site, agree who controls which risks, and check that the arrangements work in practice.

A PCBU can't hand these duties to someone else. Section 14 says a duty can't be transferred. Contracts can allocate tasks, but the duty stays with you.

Penalties

Breaches are offences, and the penalties depend on the category of offence and the jurisdiction. The model laws have three categories:

• Category 1 (reckless conduct) is the most serious and can carry imprisonment for individuals as well as heavy fines.
• Category 2 covers failing to comply with a duty that exposes someone to a risk of death or serious injury or illness.
• Category 3 covers failing to comply with a duty without exposing anyone to that risk.

Most jurisdictions also have industrial manslaughter offences, which target a PCBU or senior officer whose negligence causes the death of a worker. Check the current penalty tables with your regulator, because the figures are reviewed and differ between states.

How leaders put the duty into practice

The duty is met on the ground, not in the policy folder. These are the areas leaders should own.

Assess and control risk. Identify hazards with workers, looking at both physical hazards and psychosocial ones such as workload, bullying and job insecurity. Evaluate how likely and how serious each risk is, then choose controls in order of effectiveness: remove the hazard, change it, isolate it, engineer it, and only then rely on procedures and PPE. Record the findings in a risk register and review them when the work changes.

Set safe methods of work. For high-risk construction work, a SWMS must be prepared before the work starts. For other high-risk tasks, use a standard operating procedure so that the steps are the same every time.

Lead by example. Workers copy what leaders do. Wear the PPE, follow the procedure and walk the site. Ask about safety in management meetings, and act on what you hear.

Make reporting safe. Staff should be able to report a hazard or near miss without fear of blame. Respond to every report and tell the person who raised it what changed.

Involve workers. Safety committees, hazard reports and toolbox talks give workers a real say, and they often spot the hazard that the risk register missed.

Check that it works. Audit the controls, look at incident patterns and act on what they show. Our guide to managing WHS risks and preventing harm explains how to build that cycle into your business. For a closer look at checking controls, see reviewing risk controls.

How SafetyDocs helps

SafetyDocs has expert-written templates for the documents a PCBU needs: WHS policies, risk registers, SWMS, SOPs, management plans and inspection checklists. Job, client and site details fill in automatically, so you can adapt a document to the work in front of you.

Builders can comment on the exact line and approve a SWMS before it goes out. Workers sign free from a text, link or QR code on any phone, with no app or account. When a document changes, everyone who signed is asked to sign the new version, so you have a dated record of what was in force. It helps you meet your duties. It doesn't make you compliant on its own.

Common questions

Is a sole trader a PCBU? Yes, if they conduct a business or undertaking. A sole trader with no workers still has duties to anyone else their work could affect.

Is a PCBU the same as an employer? No. Employer is one kind of PCBU. The term also covers contractors, labour hire companies, premises managers and designers, depending on who controls the work.

Can a PCBU pass its duty to a contractor? No. A contractor can carry out tasks under your direction and agreement, but your duty remains. Section 14 of the WHS Act says a duty can't be transferred.

What are officers' duties? Officers, such as directors, have a separate duty to exercise due diligence to make sure the PCBU complies with its obligations. See section 27 of the WHS Act.

This is general information, not legal advice. Check the current law with your WHS regulator.