What a PCBU is, and the four ways you can be exempt from being one

The definition

It sits at section 5. The two limbs above are the whole test, and both are deliberately wide. Conducting it alone counts, so a sole trader is a PCBU. Not making money from it counts, so a charity, a club or an association is a PCBU as much as a company is. There is no size threshold and no employee threshold in the definition.

The section then reaches through some common structures. A business or undertaking includes a business or undertaking conducted by a partnership or an unincorporated association, and where a partnership other than an incorporated one conducts it, a reference to the PCBU is to be read as a reference to each partner in the partnership. Partners do not get to point at the firm.

The four carve-outs

These are the provisions that actually decide whether an individual is on the hook, and they are more interesting than the definition.

Section 5(4) to 5(8) of the enacted Act. Quotations are verbatim; the right-hand column is our reading of what each limit does, not the Act’s words.

The volunteer one catches people out, so here it is in full. A volunteer association does not conduct a business or undertaking for the purposes of this Act, and a volunteer association means a group of volunteers working together for 1 or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.

Read that last clause slowly. The exemption is not about being small, or unincorporated, or well-meaning. It ends the moment the association employs anybody. A sporting club with a part-time groundskeeper on the books is not a volunteer association for this purpose, and is a PCBU with the full primary duty, whatever else it is.

What follows from being one

The reason the label matters is the duty attached to it. The primary duty of care requires a PCBU to ensure, so far as is reasonably practicable, the health and safety of its own workers and of workers whose activities in carrying out work are influenced or directed by the person. That second limb is what pulls in labour hire, contractors and anyone whose work you direct without employing.

It does not stop at workers. A PCBU must also 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, which is the provision that covers visitors, neighbours and the public.

The section then lists what that includes without limiting it: a work environment without risks, safe plant and structures, the provision and maintenance of safe systems of work, safe use and storage of plant, structures and substances, and adequate welfare facilities.

Which Act, and why that matters here

There is no single Australian WHS Act. Safe Work Australia writes model laws and each parliament enacts its own version, so the operative text is the one your jurisdiction passed. We have read the provisions above from the Work Health and Safety Act 2011 (Qld), current in force version, because it is a genuinely enacted text that we can fetch and quote directly.

Do not assume every jurisdiction is word for word identical. It usually is on this section, because the point of a model law is uniformity, but usually is not a basis for advice and some jurisdictions have amended their Acts. If the answer matters to you, read your own jurisdiction’s section 5, and be aware that carve-out three above points at regulations rather than the Act.

Spotted an error? Request a correction and we will check it against the Act and log the outcome here.