PCBU stands for “person conducting a business or undertaking”. It is the legal term in the Work Health and Safety Act 2011 (Qld) for whoever runs a business or undertaking: a company, a sole trader, a partnership, or a not-for-profit organisation that is not a volunteer association (see below). A PCBU carries the main safety duty in section 19 of the Act: to ensure, so far as is reasonably practicable, the health and safety of workers and of other people affected by the work.
What does PCBU mean?
The Act uses “PCBU” rather than “employer” so that safety duties reach everyone who runs the work, not only people with employees on the payroll. Under section 5(1), a person conducts a business or undertaking whether they do it alone or with others, and whether or not it is run for profit or gain. Companies, sole traders, charities with paid staff and principal contractors can all be PCBUs.
Who is a PCBU in Queensland?
- Companies and other businesses. The business is the PCBU. Its directors and some senior managers are “officers” with their own duty (see below).
- Sole traders and self-employed people. A self-employed person is a PCBU and must look after their own health and safety as well as the safety of others (section 19(5)). An individual PCBU who does work in the business is also a worker (section 7(3)).
- Partnerships. If a business is run by a partnership (other than an incorporated partnership), each partner is treated as the person conducting the business (section 5(3)).
- Contractors and subcontractors. A contractor who runs their own business is a PCBU for that business. They are also a “worker” of the PCBU they are working for (section 7(1)(b)), so both sets of duties can apply.
- Not-for-profit organisations. The Act applies whether or not a business or undertaking is conducted for profit (section 5(1)(b)).
- Designers, manufacturers, importers, suppliers and installers of plant, substances and structures, who have their own duties in sections 22 to 26.
Who is not a PCBU?
Section 5 and the Work Health and Safety Regulation 2011 (Qld) rule some people out:
- A person who is engaged solely as a worker or an officer of a business is not a PCBU for that role (section 5(4)). They still have duties as a worker or an officer.
- An elected member of a local government, acting in that capacity (section 5(5)).
- A volunteer association: a group of volunteers working together for community purposes where none of them employs anyone (section 5(7) and (8)).
- Under regulation 7, a strata title body corporate responsible for common areas used only for residential purposes may be taken not to be a PCBU in relation to those premises, and an incorporated association of volunteers working together for community purposes, where neither it nor any of the volunteers employs anyone, may be taken not to be a PCBU. The strata exclusion does not apply if the body corporate engages any worker as an employee.
Section 20(1)(a) excludes the occupier of a residence from the workplace management duty unless the residence is occupied for the purposes of, or as part of, the conduct of a business or undertaking. If your situation is borderline, ask WorkSafe Queensland or get legal advice.
The primary duty of care: section 19
Section 19 is the heart of PCBU responsibility. A PCBU must ensure, so far as is reasonably practicable:
- the health and safety of workers it engages, or causes to be engaged, and workers whose activities it influences or directs, while they are at work (section 19(1));
- that other people, such as visitors, customers and passers-by, are not put at risk by work carried out as part of the business (section 19(2)); and
- a long list of specifics (section 19(3)): a safe work environment, safe plant and structures, safe systems of work, safe use, handling and storage of plant and substances, adequate welfare facilities, the information, training, instruction and supervision people need, and monitoring of workers’ health and workplace conditions.
Section 17 says how to do it: eliminate risks so far as is reasonably practicable, and if you cannot eliminate a risk, minimise it so far as is reasonably practicable. Our guide to the hierarchy of controls shows how that works on site.
What does “reasonably practicable” mean?
Section 18 defines it as what is, or was at the time, reasonably able to be done, weighing up all relevant matters including:
- how likely the hazard or risk is to occur, and how much harm could result;
- what you know, or ought reasonably to know, about the hazard and about ways to remove or reduce it;
- whether suitable ways to eliminate or minimise the risk are available; and
- the cost of those ways, considered after assessing the risk and the options, including whether the cost is grossly disproportionate to the risk.
Further duties of a PCBU: sections 20 to 26
Depending on what the business does, a PCBU can have extra duties. Each is qualified by “so far as is reasonably practicable”.
| Section | Applies to a PCBU that… | Core duty |
|---|---|---|
| 20 | manages or controls a workplace | The workplace, the ways in and out, and anything arising from it are without risks to anyone’s health and safety. |
| 21 | manages or controls fixtures, fittings or plant at a workplace | They are without risks to anyone’s health and safety. |
| 22 to 24 | designs, manufactures or imports plant, substances or structures | Make sure they are without risks, do the necessary testing, and give adequate information. |
| 25 | supplies plant, substances or structures | Make sure they are without risks to people who use, handle, store or construct them. |
| 26 | installs, constructs or commissions plant or structures | Do so in a way that leaves them without risks. |
Section 26A adds that a PCBU must comply with an approved code of practice, or manage the hazards in a different way that gives an equivalent or higher standard of health and safety. An approved code of practice is practical guidance rather than a regulation, but it is admissible as evidence of whether a duty was complied with, and a court can rely on it in deciding what is reasonably practicable (section 275).
You cannot hand your duty to someone else
A safety duty cannot be transferred to another person (section 14), and a person can hold more than one duty at once (section 15). More than one PCBU can have the same duty. Each keeps responsibility for their own duty, and each must discharge it to the extent that they can influence and control the matter (section 16). A contract that hands safety to a subcontractor does not remove the head contractor’s duty.
Consulting other duty holders and workers: sections 46 to 49
If more than one person has a duty for the same matter, each must, so far as is reasonably practicable, consult, cooperate and coordinate activities with the others (section 46). That includes a builder and its subcontractors, or two businesses sharing a site. See our guide on working alongside contractors.
A PCBU must also consult workers who are, or are likely to be, directly affected by a work health and safety matter (section 47). Consultation means sharing relevant information, giving workers a reasonable chance to raise issues and contribute to decisions, taking their views into account and telling them the outcome (section 48). Section 49 lists when it is required, including when identifying hazards, deciding on controls and proposing changes. Our consultation, communication and training policy template sets out a process you can adopt.
Officers and due diligence: section 27
If a PCBU has a duty under the Act, each of its officers must exercise due diligence to ensure the PCBU complies. An officer is, broadly, someone within the meaning of section 9AD of the Corporations Act 2001 (Cwlth), such as a company director or a senior manager who makes or takes part in decisions affecting the business, but not a partner in a partnership. Due diligence includes taking reasonable steps to:
- keep up to date with work health and safety matters and understand the business’s operations, hazards and risks;
- make sure the business has, and uses, appropriate resources and processes to eliminate or minimise risks;
- make sure there are processes for receiving and responding to information about incidents, hazards and risks;
- make sure there are processes for complying with the business’s duties, such as reporting notifiable incidents and consulting workers; and
- verify that those resources and processes are provided and used.
An officer can be prosecuted under section 27 whether or not the PCBU itself has been convicted (section 27(4)).
Workers and other people at the workplace: sections 28 and 29
PCBUs are not the only people with duties. While at work, a worker must take reasonable care for their own health and safety and not harm others, follow reasonable instructions so far as they are able, and cooperate with reasonable safety policies and procedures notified to workers (section 28). Anyone else at the workplace, including a visitor, must also take reasonable care and follow reasonable instructions (section 29).
What happens if a PCBU falls short
The Act sets three categories of offence for failing a health and safety duty. These are maximums, and a penalty unit is $100 under this Act (section 5(1)(d) of the Penalties and Sentences Act 1992 (Qld)).
| Category | Conduct | Body corporate (maximum) | Individual PCBU or officer (maximum) |
|---|---|---|---|
| 1 (section 31) | Negligent or reckless conduct that exposes someone to a risk of death or serious injury or illness | 30,000 penalty units | 6,000 penalty units or 5 years imprisonment |
| 2 (section 32) | Failing to comply with a duty, exposing someone to a risk of death or serious injury or illness | 15,000 penalty units | 3,000 penalty units |
| 3 (section 33) | Failing to comply with a duty | 5,000 penalty units | 1,000 penalty units |
A category 1 offence is a crime. Queensland also has industrial manslaughter offences for a PCBU and for a senior officer of a PCBU, where an individual to whom the PCBU owes a health and safety duty dies and the PCBU’s or senior officer’s negligent conduct causes the death (sections 34C and 34D).
What a PCBU should have in place
The Act does not list the paperwork, but a PCBU needs to be able to show how it meets its duties. For most small businesses that means:
- a written work health and safety policy that says who is responsible for what (start with our free work health and safety policy template);
- a way to identify hazards and assess and control risks, with the records kept;
- a consultation process for workers and for other businesses on the job;
- training, inspection and incident reporting routines, and a regular review.
The policies and procedures bundle covers the core policies in one set, and the WHS manual template pulls them into a single manual. On a construction project costing $250,000 or more, the principal contractor also has Chapter 6 duties under the Regulation, including a written WHS management plan before work starts (regulations 292 and 309). Our guide on who is responsible for safety on a construction site explains how the roles fit together, and our guide to a WHS management system for small business shows how to tie it all together.
This guide is general information, not legal advice. Check the current law or talk to WorkSafe Queensland for your situation.
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