What or Who is a PCBU?
The words, “person conducting a business or undertaking” (PCBU), appear frequently in the WHS Act. Section 5 of the WHS Act 2011 defines what a PCBU is.
The WHS Act does not have definitions of "business" or "undertaking". It has been suggested that:
a business is an enterprise that is usually conducted with a view to profit and with a degree of organisation, system and continuity.
an undertaking may have elements of organisation, system and continuity, but is usually not operated for profit. [Ref 1]
However, the WHS Act always uses "business" and "undertaking" together, so it is not strictly necessary to distinguish between them. Further, section 5(1)(b) of the WHS Act specifies that a person conducts a business or undertaking whether or not the business or undertaking is conducted for profit or gain. [Ref 2.]
What is a "person"?
In laws about interpreting legislation, the term “person” means more than just an individual human being. It is interpreted to also mean a company, an unincorporated association, and a partnership. Therefore, a "person" in the legal sense is a business entity, not to be confused with a "person" as a human being.
Is the Director or CEO of a Company a PCBU?
The owner of a business, company director, or CEO are obviously people. Section 5(4) of the WHS Act excludes them from the definition of PCBU. They are in fact Officers. Officers are people. Officers represent the PCBU and have their own duties under WHS Law, as covered in Section 27 of the WHS Act.
Is a Self - Employed Person a PCBU?
Yes. A self-employed person is a PCBU. He or she is a recognised legal person and has not been excluded from the meaning of a “person conducting a business or undertaking” in Section 5 of the WHS Act. This is really the only instance when a PCBU is actually also a human being.
A PCBU includes;
a company
partners in a partnership
sole traders and self employed persons
an association if it has one or more employees
a volunteer association that employs anyone to carry out work
a government department
a public authority (including local government councils)
A PCBU does not include:
An elected member of a local authority
A volunteer association that does not employ anyone, and if none of its volunteers employs any person to carry out work for the volunteer association
A strata body corporate responsible for common areas used only for residential purposes
A person who is engaged solely as a worker or an officer
Safe Work Australia Interpretive Guidelines
Safe Work Australia has a number of guides on WHS Law, Duty Holders and WHS duties. You may find this one useful in regard to what a PCBU must do: Duties of a PCBU | Safe Work Australia
[Ref 1] Safe Work Australia, Interpretive guideline—model Work Health and Safety Act—the meaning of ‘person conducting a business or undertaking’.
14th August 2018
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