In Brief

The Work Health and Safe­ty Act 2011 (NSW) (‘WHS Act’) came into effect on 1 Jan­u­ary 2012 and has brought with it sig­nif­i­cant changes and even ben­e­fits for employ­ers. The fol­low­ing gives you a short sum­ma­ry of this long-await­ed change.


Who or what is a: Per­sons Con­duct­ing a Busi­ness or Under­tak­ing (‘PCBU’)

PCBU is a new term in the WHS Act which replaces the tra­di­tion­al employ­er. A PCBU now specif­i­cal­ly refers enti­ties, whether they be sole trad­er, not-for – prof­its or com­pa­nies. It expands the scope of those with responsibility.

Who are PCBUs respon­si­ble for?

In short – just about every­one. Leg­is­la­tors have also reclas­si­fied tra­di­tion­al employ­ees as work­ers. The change in ter­mi­nol­o­gy means that a duty is owed not only to tra­di­tion­al employ­ees, but also more mod­ern work­ing rela­tion­ships including: 

  • Sub­con­trac­tors and their employees;
  • Out­work­ers & employ­ees of labour hire companies;
  • Trainees and work expe­ri­ence stu­dents; and
  • Cus­tomers and volunteers.
What are my duties as a PCBU?

The pri­ma­ry duty of care of a PCBU is to ensure that work­ers and oth­er per­sons are not exposed to health and safe­ty risks aris­ing from work car­ried out by the PCBU, so far as rea­son­ably prac­ti­ca­ble. In deter­min­ing what is rea­son­ably prac­ti­ca­ble in the cir­cum­stances, the fol­low­ing must be tak­en into account:

  • The grav­i­ty of the harm;
  • The like­li­hood of the harm occurring;
  • What the per­son affect­ed knows or should know about the risk;
  • The avail­abil­i­ty and suit­abil­i­ty of risk controls;
  • The costs involved and whether they are gross­ly dis­pro­por­tion­ate to the risk.

The empha­sis of the Act is clear­ly on employ­ers to turn their mind to car­ry­ing out risk assess­ments on all their:

  • Work procedures;
  • Plant and equipment;
  • Sub­stances and mate­r­i­al used; and
  • Phys­i­cal premis­es and surrounds.

To ensure that they are aware of their risks, have con­sid­ered ways of elim­i­nat­ing the many risks, and where that can­not rea­son­ably be achieved, min­imise the risks.

As part of this process, PCBUs also have a duty to con­sult work­ers on their busi­ness’ health and safe­ty prac­tices and give work­ers a rea­son­able oppor­tu­ni­ty to express their views and con­cerns. One method for con­sul­ta­tion is the intro­duc­tion of the Health & Safe­ty Rep­re­sen­ta­tives (‘HSRs’). We will address the role of a HSR in more detail in future articles.

What does this mean for employers?

Although the above changes are sig­nif­i­cant, they should not be prob­lem­at­ic to most employ­ers who have com­plied with the pre­vi­ous leg­is­la­tion. It is rec­om­mend­ed that employ­ers estab­lish a clear under­stand­ing of who is owed a duty of care and to review their exist­ing pro­ce­dures to ensure that they com­ply with the new leg­is­la­tion. If not, the fines are very steep and can and often will be applic­a­ble to own­ers, direc­tors and senior man­age­ment, personally.

If you would like to repub­lish this arti­cle, it is gen­er­al­ly approved, but pri­or to doing so please con­tact the Mar­ket­ing team at marketing@​swaab.​com.​au. This arti­cle is not legal advice and the views and com­ments are of a gen­er­al nature only. This arti­cle is not to be relied upon in sub­sti­tu­tion for detailed legal advice.

Publications

No will, no direc­tion: The estate of Liam Payne and under­stand­ing law of intestacy

When Liam Payne sang ​“nobody can drag me down” we did­n’t think he was talk­ing about his aver­sion to sit­ting…

Beware Retail Lease Dis­close Statements

Before a retail lease is entered into, the Retail Leas­es Act 1994 (NSW) (the RL Act) requires a land­lord to give a signed Lessor’s…

Devel­op­ers beware the statu­to­ry non del­e­gable’ duty of care under the Design and Build­ing Prac­ti­tion­ers Act 2020

The Design and Build­ing Prac­ti­tion­ers Act 2020 (DBP Act) came into effect in NSW in June 2020. Since its intro­duc­tion the courts…

In the News

Michael Byrnes is quot­ed in the arti­cle, Pro­posed non-com­pete ban could back­fire on work­ers, firm warns”, pub­lished in Lawyers Week­ly on 20 May 2025

Michael Byrnes is quot­ed in the arti­cle, ​“Pro­posed non-com­pete ban could back­fire on work­ers, firm warns”, pub­lished in Lawyers Week­ly…

Press Release | Swaab’s James Skel­ton Appoint­ed Chair of Glob­al Emerg­ing Lead­ers Advi­so­ry Board at Mer­i­tas AGM in Mex­i­co City

In this piv­otal lead­er­ship role, James will guide ini­tia­tives to strength­en rela­tion­ships among Emerg­ing Lead­ers across Mer­i­tas’ 175 glob­al mem­ber…

Press Release | New Part­ner Appoint­ment — Mark Glynn

With over two decades in the indus­try, Mark is a recog­nised front-end con­struc­tion lawyer spe­cial­ist with­in the build­ing and con­struc­tion indus­try. Mark…

Sign up for our Newsletter

*Mandatory information