• A PCBU is a person conducting a business or undertaking.
• A ‘business or undertaking’ is intended to be read broadly and covers businesses and undertakings conducted by people including:

1. employers;
2. principal contractors;
3. head contractors; 
4. franchisors; and 
5. the Crown. 

• The law explicitly provides that a self-employed person is a PCBU as they must ensure their own health and safety while at work.
• Generally the following entities are excluded from the definition of a PCBU:
• people engaged solely as workers or officers of the business or undertaking;
• a volunteer organisation without any paid employees;
• strata title body corporates; and
• people that engage contractors on an ad hoc basis such as parents that engage casual babysitters. 
• If however a person engages a contractor on a regular basis they may be a PCBU. This may apply for example if you have engaged someone to mow your lawn every week.

• The general duties of a person conducting a business or undertaking (‘PCBU’) are:

1. to provide for the health and safety of workers and others so far as is reasonably practicable;
2. to provide a safe work environment;
3. to provide and maintain safe plant and procedures;
4. to ensure plant and chemicals are used, transported and stored safely;
5. to provide adequate facilities for the welfare of workers such as:

• bathrooms;
• lunch rooms; and
• rest areas;

1. to provide proper training, work instructions and supervision;
2. to conduct regular health monitoring of workers; and
3. to consult with workers on matters relating to their health, safety and wellbeing.

• A worker is defined as any person that carries out work in any capacity for a person conducting a business or undertaking and includes the following people:

1. employees;
2. contractors and subcontractors;
3. employees of contractors and subcontractors;
4. employees of a labour hire company;
5. outworkers;
6. apprentices and trainees;
7. students gaining work experience; and
8. volunteers.

• A genuine redundancy will occur when the employer no longer needs work that was performed by an employee to be performed by anyone. 
• The answer here will depend on:

1. the type of employment the employee held;
2. the terms of employee’s contract;
3. the modern award or enterprise agreement;
4. the size of the employer; and 
5. how long the employee was employed with the employer. 

• A full time employee within a business of more than 15 full-time staff members will be entitled to:

1. annual leave;
2. any accrued long service leave;
3. a notice of termination; and 
4. severance payment if employed for more than one year. 

• An employee of a business of less than 15 full time staff members is generally not entitled to severance pay on redundancy. 
• If you have any concerns you can use our free and anonymous Ask a Lawyer service to get information specific to your situation.

• A worker must among other things:

1. take reasonable care for their own health and safety;
2. comply with any reasonable instructions issued to them by the person conducting the business or undertaking (‘PCBU’); and
3. comply with any reasonable health and safety policies or procedures in the workplace.

• The WHS legislation does not distinguish between the obligations that are owed to contractors and ordinary workers. 
• This means that the duty of care owed by the person conducting the business or undertaking (‘PCBU’) is identical for both employees and contractors. However this duty is limited to matters over which the PCBU has control. 
• This dispels the popular belief that employers can avoid their safety obligations by outsourcing riskier work to contractors

• Yes. The law states that the person conducting the business or undertaking (‘PCBU’) must provide for workers and others to be protected from the risk of harm. 

1. Visitors to the workplace are generally considered to come within the meaning of ‘others.’
2. Visitors are obliged to take reasonable care for their own safety and for the safety of those around them. 

• Visitors are also obliged to comply with any reasonable orders or instructions of the PCBU.

• A volunteer association will be excluded from the definition of a person conducting a business or undertaking (‘PCBU’) where:

1. the association is comprised of a group of volunteers that work together for community purposes; and
2. none of the volunteers are engaged by any other person to carry out work for the association.

• If the association employs staff as well as volunteers such as a retail organisation like an Op-shop then the organisation will be a PCBU and will be required to comply with WHS duties with respect to the volunteers. 

• People conducting a business or undertaking (‘PCBUs’) are not expected to prevent all workplace incidents from occurring. They are only expected to do what is ‘reasonably practicable’ in the circumstances to eliminate or reduce the likelihood of harm. 
• In determining what is reasonably practicable a PCBU must take into account:

1. the likelihood of identified hazards occurring;
2. the degree of harm that might result from the hazard or risk; and
3. the availability of suitable controls that can reasonably be put into place to eliminate or minimise the risk of harm.

• After assessing the extent of the risk and the ways the risk could be eliminated or minimised the associated costs must be considered including whether the cost is grossly disproportionate to the risk. 

• While the WHS legislation obliges a person conducting the business or undertaking (‘PCBU’) to consult with workers on matters affecting their health and safety at work there is no obligation for workers and PCBUs to reach an agreement before a decision is made. 
• If the reason for disagreement with the PCBU is because the workers hold a genuine and reasonable concern about their health and safety as a result of any changes proposed the worker is legally entitled to stop work and refer the matter to the external work, health and safety regulator for their state. 
• This can create serious disruptions to the productivity of the workplace and foster a negative workplace safety culture. It is therefore encouraged that a collaborative approach be taken when making decisions with respect to workers’ health and safety to reduce the likelihood of a disagreement.

• Subject to what an individual employment contract or modern award stipulates the National Employment Standards set out the minimum notice requirements upon termination of employment. 
• The length of notice varies from 1 week to 4 weeks depending on the period of continuous employment.
• Employees over 45 years old who have been employed for over 2 years are entitled to an extra week of notice.
• Payment of wages or salary including superannuation equivalent to the period of notice can be substituted as an alternative to giving notice.
• The same notice periods usually apply to employees upon terminating their employment.

Question

I run a construction company. My workers recently worked on a demolition for a residential premise where they discovered asbestos. What are my WHS obligations to keep my workers safe?

Answer

• It is against the law to allow or direct workers to carry out work involving asbestos. 
• All workers should be immediately stopped from carrying out work and taken offsite until the asbestos is removed. 
• A licensed asbestos removalist should be engaged to visit the site and determine the presence of asbestos and if present remove the asbestos and dispose of it safely. 
• If one of your workers is a licensed asbestos removalist you must provide them with appropriate health monitoring before they commence any asbestos removal work.
• If you hire a contractor to carry out the removal work you must obtain evidence from them to demonstrate that they are licenced to remove asbestos prior to allowing them to commence work.

Question

I run a hotel and while undergoing refurbishment a contractor told me that he suspected that the walls of the hotel contained asbestos. If the asbestos was mixed into the cement covering the walls I cannot remove it without knocking down the entire structure. What do I need to do to ensure the asbestos is left undisturbed and my workers and guests remain safe?

Answer

• When left intact and undisturbed asbestos-containing materials do not pose a health risk to people working or living in buildings. If asbestos-containing materials are detected at the workplace and of a type that can’t be removed a PCBU must:

1. arrange for an inspection to be conducted by a licensed contractor to determine whether asbestos is located in other places on the premises;
2. prepare an asbestos register which records the location, type and condition of the asbestos; and
3. place signs over where the asbestos is present to warn workers and contractors to avoid interfering with or disturbing the asbestos in those locations.

• A PCBU must also prepare an asbestos management plan which details:

1. decisions about how the asbestos will be managed;
2. safe work procedures and control measures when dealing with asbestos;
3. procedures for dealing with emergencies or incidents involving asbestos; and
4. consultation, responsibilities, information and training provided to workers in relation to the asbestos.

Question

I asked my employee to carry out work on a forklift. The employee notified me that the forklift had a broken reverse beeper and refused to carry out the task until the issue was repaired. Other than the beeper the forklift still works fine. Does he have the right to refuse to carry out my work instructions?

Answer

• A worker may cease or refuse to carry out work if he or she holds a reasonable concern that the work would expose them or others to a serious risk to health and safety. 
• The worker’s entitlements are preserved for any period in which work is ceased provided the worker remains available to carry out suitable alternative duties.
• In this particular scenario whether the worker is within his rights to stop work will depend on the circumstances:

1. operating a forklift is a high risk activity requiring a licence that suggests that a greater degree of care is needed when operating the forklift to ensure it does not pose any immediate or imminent threats to health or safety;
2. the purpose of the reverse beeper is to ensure people in the vicinity of the forklift are warned that a forklift is reversing and that the driver may not be able to see them;
3. in a busy warehousing environment this may be concerning enough to cause a worker to stop work; and
4. if the work was being carried out in an isolated place or at a time where no other workers were working in the vicinity of the forklift then the risk of harm could possibly be lowered sufficiently to compromise the workers’ refusal to work.

• On balance it would appear that the worker is entitled to cease using the forklift until the reverse beeper is fixed.

Question

I run a bar and once a week one staff member is tasked with going into the plant room behind the bar and using corrosive chemicals to clean the keg lines. Last week the staff member suffered serious burns to her hands after the chemicals splashed onto her while she was mixing them. She was not wearing any gloves at the time. What steps can I take to ensure this does not happen again? 

Answer

• Chemical-induced injuries and diseases are amongst the most significant problems for employers and industry. In order to reduce the likelihood of this incident occurring again you should: 
• conduct a risk assessment on the specific activity of cleaning keg lines including hazard identification, assessment and control;
• implement administrative controls by developing a procedure for the safe cleaning of keg lines and ensure all staff who clean keg lines are familiar with the procedure;
• look into possible engineering controls such as automatic cleaning apparatus which could eliminate the need for corrosive chemicals to be handled by workers for the purpose of cleaning keg lines;
• provide suitable personal protective equipment (PPE) including:

1. industrial gloves;
2. goggles; and 
3. breathing masks;
4. ensure the PPE is readily available in the plant room at all times;
5. provide a first-aid kid in the plant room and ensure it is well stocked;
6. ensure there is plenty of signage in the plant room containing instructions on the safe way to clean keg lines as well as warnings as to the dangerous types of chemicals being stored and used in the room;
7. ensure current material safety data sheets for all chemicals are printed and kept in the plant room;
8. ensure chemicals are properly bonded and prevented from being able to be tipped over and spilled;
9. ensure there is a spill kit close to where the chemicals are stored so that any spills can be quickly mopped up;
10. ensure chemicals are stored according to their dangerous goods classification and are stored away from any extreme heat and that chemicals which may react with each other are not stored together;
11. provide training to all staff involved in keg line cleaning and provide refresher training annually; and
12. ensure that staff involved in keg line cleaning are consulted with respect to these changes.

Question

An employee of mine was recently injured when he used his hand to clean the blades of a dough mixer while the mixer was still plugged into the socket. The employee has been trained in how to clean the dough mixer safely and there are plenty of signs in his workspace that display safe work instructions. In addition he was caught cleaning the blades using his hand once before and reprimanded. He is not a new worker and has been working with the dough mixer for over 2 years. Am I still to blame for his injuries?

Answer

• The work, health and safety regulatory body for your state will only prosecute an employer for a worker’s injuries if it can be shown that the employer breached his or her duties under the law. 
• Here it appears that you have complied with your duties as an employer:

1. you have provided the worker with training and work instructions; and 
2. you have evidence that the worker had previously disregarded his training and cleaned the mixer contrary to your instructions. 

• If the worker has been using the mixer for a long period of time he would not be expected to require supervision in carrying out his tasks. 
• While you will still be required to process the workers compensation claim it is unlikely in the circumstances that you would be prosecuted for his injuries.

Question

• I operate a call-centre that services clients from all over the world. My workers are often required to work night-shifts. Some of them have reported feeling very unsafe walking back to their cars after dark as the car-park is an open area with no boom gates or roller shutters to prevent public access.
• Answer
• There are several controls you can put in place to help keep your staff safe. Engineering controls such as installing good lighting and convex mirrors could be effective in reducing the number of dark corners where potential offenders could hide. 
• You could install CCTV cameras between your work premises and the car park. CCTV cameras are known to deter offenders from committing acts of violence if it is obvious they are being filmed. 
• You could also hire a security escort to work during night-shift hours to walk staff to their cars when they finish their shift. 
• If hiring a security escort is outside of your budget you could implement a policy whereby staff that leave the workplace after hours leave in groups of 2 or 3 as offenders are less likely to attack people in groups. 
• You could provide your staff with personal protective equipment in the form of whistles or hand-held alarms to be used in the event of an attack.

Question

Do I need to do a risk assessment for working at height? The only working at height activity my workers are engaged in is changing light bulbs and this only requires use of a stepladder.

Answer

• Yes. Under WHS legislation a PCBU is required to manage risks to health and safety associated with a fall. 
• Falls are defined as any activity where a person could fall from one level to another that is reasonably likely to cause injury. This broad definition could include falls from standing on a chair. 
• A recent workplace investigation involved an incident where a worker used a stepladder to change a light globe and fell awkwardly. The worker subsequently died as a result of his injuries. This highlights the need to recognise that working at any height is a high-risk activity that requires active management even if it only occurs occasionally. 
• In Victoria a fall hazard is defined differently and only includes activities where a worker could fall more than 2 meters. If your business is based in a Victorian workplace a risk assessment would not be required. A diligent workplace would conduct one regardless particularly if ladders are being used frequently.

Question

I am a business owner and have six people employed under me. I have become aware of a bullying issue in the workplace where one employee has been repeatedly bullying two others. I do not want to create an adverse situation as the person who is carrying out the bullying is a senior staff member. Is it ok if I don’t do anything? 

Answer

• No. The primary duty of a PCBU to provide a safe workplace free from risks to health and safety includes risks to a worker’s psychological health. 
• An employer that instigates or ignores bullying in the workplace may be liable in the event that the bullying escalates and causes a worker to suffer mental and physical harm. 
• You must take action to prevent the staff member from continuing the bullying activities. 

Question

I recently purchased new parts of a plant from a supplier. I want to ensure that the work is started at the earliest opportunity and do not want to carry out any inspections as it was bought from a reputed company. If however a worker is injured at my workplace while operating a piece of plant that turns out to be faulty who will be liable? 

Answer

• While the manufacturers, designers and suppliers have their own legal obligations to design, produce and sell safe items of plant this does not absolve the PCBU of their responsibility to ensure that the plant is safe for use by their workers. 
• A PCBU that is also a person with management or control of plant is legally obliged to check that an item of plant is without risks to health and safety prior to commissioning it for use by workers so far as this is reasonably practicable. 
• In addition a PCBU must:

1. ensure that the plant is installed by a competent person;
2. conduct inspections to identify risks associated with using the plant and prepare a risk assessment based on their findings;
3. implement controls to reduce risks; 
4. ensure that that workers are trained in how to operate the plant safely; and
5. ensure that the plant is operated in a safe manner at all times.

Question

I have already tried everything to serve my court documents on my landlord. I am representing myself as I cannot afford a lawyer or a process server. I would like to know more about how I can apply to the court for substituted service?

Answer

• Your registry staff will be able to help you with questions about how to apply for substituted service at your court. 

• Generally you will need to apply in writing.

o You must send a letter to the court asking for substituted service.

o You must also prepare a supporting affidavit. This affidavit will need to include information such as:

 the date of the writ; 

 your attempts to serve the documents; 

 the time and place of these attempts at service; and

 your proposal for an alternative way of serving the documents. 

o You must include information about:

 your genuine attempts to find the person; and

 how the attempts have been unsuccessful.

o You must also explain how the proposed method of service will successfully tell the defendant about the court case.