In the past many employers ‘managed’ their Workplace Health and Safety (WHS) risk by strategic appointment of directors or engaging contractors.
The WHS legislation now imposes the WHS safety obligations on any “person conducting a business or undertaking” (PCBU) regardless of their role, title or legal relationship with the workers.
If you are on the ground directing the activities of workers, you will be a PCBU. The fact that you are not a director of the company that owns the business or engages the workers will not protect you from liability if a WHS breach occurs.
A PCBU must ensure, so far as reasonably practicable, the health and safety of:
- workers engaged, or caused to be engaged, by the person; and
- workers whose activities in carrying out work are influenced or directed by the person.
That means the obligations of a PCBU extend not only to employees but also to contractors and other workers that the PCBU directs.
This is particularly important for agricultural businesses which, as the figures show, is one of the most hazardous industries to work in due to its unique number of dangers and often remote locations.
Australia wide, the agricultural sector has the highest number of work place fatalities with over 40 per year making up 20% of the countrywide total. The sector has the highest percentage of older workers, with 16% aged 65 or older, and increasing. This is important because the statistics show older workers have a substantially higher injury and fatality rate.
Further PCBU responsibilities
A PCBU must ensure things such as:
- provision and maintenance of a work environment without risk to health and safety;
- provision and maintenance of a safe system of work;
- safe use, handling and storage of plant, structures and substances;
- adequate facilities for the welfare of staff;
- provision of information and training; and
- the monitoring of the health of workers to prevent illness or injury.
A PCBU is not expected to fully eliminate risks but is required to minimise them. This requirement cannot be contracted out of. The law expects that all workers should expect to be able to work in safety.
A PCBU who fails to comply with its WHS obligations risks penalties of up to $3 million for corporations and $600,000 and/or 5 years imprisonment for individuals.
The easiest way for any PCBU to comply with these legal requirements is to develop a risk management plan. This plan would:
- identify hazards;
- assess risks;
- control risks; and
- review control measures
The plan should also include seeking legal advice on the process and plan.
All PCBU’s should also review their own structuring to identify the possible impact of non-compliance on their business and family assets.
Please contact our office if you have any further queries.