14 Jul Are you a PCBU or an Officer of the Company?

At HBA Learning Centres, we speak to the many thousands of Learners we have and we are amazed to learn that many of them prior to enrolment are not aware of their legal status and the obligations that places upon them. As you would have heard so many times in your life “ignorance is no excuse in the eyes of the law” so we thought you might be interested to know where you reside.

Let’s look at some of the classifications and their responsibilities:

Person conducting a business or undertaking (PCBU):
This is a complex category as there are some exemptions such as a volunteer association but broadly speaking any one conducting a business or undertaking alone or with others, whether or not for profit or gain is a PCBU. A PCBU can be a sole trader (for example a self-employed person), each partner within a partnership, company, unincorporated association or government department of public authority (including a municipal council).

An elected member of a municipal council acting in that capacity is not a PCBU.

A ‘volunteer association’ that does not employ anyone is not a PCBU. If it becomes an employer it also becomes a PCBU for purposes of the WHS Act.

A ‘strata title body corporate’ that does not employ anyone is not a PCBU, in relation to any common areas (it is responsible for) used only for residential purposes.

Officer:
An officer within the meaning of section 9 of the Corporations Act 2001 (Cth) other than each partner within a partnership. Broadly, an officer is a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the organisation’s activities. This does not include an elected member of a municipal council acting in that capacity or a minister of a state, territory or the Commonwealth.

An officer can also be an officer of the Crown or a public authority if they are a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking of the Crown or public authority.

Each partner within a partnership is not an officer but a PCBU in their own right.

Both of these categories are subject to severe penalties in the event of a proven breach of the legislation. Remember, legislation =Law.

The Act also carries definitions and responsibilities for a Worker and you may be surprised to learn of the obligations and penalties that can apply to this category.

If you are not familiar with the ACT then we recommend you start some study. A good starting point is www.safeworkaustralia.gov.au or enrol into BSB41415 Certificate IV in Work Health and Safety and learn how to help manage the risk associated to Safety at your workplace.