Soon another Australian State, South Australia, will be using the concept of the PCBU – the Person Conducting a Business or Undertaking in its occupational health and safety laws. This concept has the potential to expand OHS laws well beyond the traditional factory fence or office and the recent discussion on the safety of quad bikes may illustrate this.
Until there are Court cases to clarify the Work Health and Safety laws and concepts it is worth looking at the source of these concepts. Safe Work Australia explains the PCBU in an interpretative guideline.
Businesses may be “enterprises usually conducted with a view to making a profit and have a degree of organisation, system and continuity”. In terms of quad bike use, this could be a farm.
Undertakings “may have elements of organisation, systems, and possibly continuity, but are usually not profit-making or commercial in nature.” Probably not a farm.
A workplace is likely to be “a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work.” This seems to include all of the farm boundaries and any travelling between the fields.
Safe Work Australia says that “the definition of a ‘worker’ is a person who carries out work in any capacity for a person conducting a business or undertaking.” Significantly, there is no age reference in this so a child could be considered a worker if undertaking a work task like “helping” on the farm.
Work is not defined in the laws but Safe Work Australia provides the following possible criteria for identifying work. Note that not all the criteria need to be present for work to exist.
“the activity involves physical or mental effort by a person or the application of particular skills for the benefit of another person or for themselves (if self-employed), whether or not for profit or payment;”
“activities for which the person or other people will ordinarily be paid by someone is likely to be considered to be work;”
“activities that are part of an ongoing process or project may all be work if some of the activities are for remuneration;”
“an activity may be more likely to be work where control is exercised over the person carrying out the activity by another person; and”
“formal, structured or complex arrangements may be more likely to be considered to be work than ad hoc or unorganised activities.”
It is not difficult to see the use of a quad bike on a farm reflecting one or more of these criteria.
But what OHS/WHS obligations exist for the PCBU? The PCBU must, according to advice from WorkCover NSW:
“…must ensure the health and safety of workers, customers and visitors by eliminating or minimising risks at the workplace.”
On a farm where quad bikes are used this indicates a farmer needs to guarantee (“must”) the safety of themselves, their family and any visitors to the farm. That is an enormous expectation but is not really any different from the workplace duties that farmers have had to apply for decades except that the new laws overtly state that the safety obligation extends beyond the employee. Farmers are likely to need to either consider everyone who comes the farm and “helps out” as employees or change their understanding of workplace safety to extend it throughout all parts of their farming business, whichever is the easier concept to understand.
SafetyAtWorkBlog is not a law firm and so this article is speculative but the information above may illustrate why the Workplace Relations Minister, Bill Shorten, does not need to make crush protection devices (CPDs) for quad bikes mandatory. The Work Health and Safety laws seem to place sufficient obligations on farmers, as PCBUs, that increasing the safety of quad bikes through a range of controls, including CPDs, is unavoidable.
Many have said that the WHS laws will need court cases and prosecutions to clarify situations where the laws apply. However this should not stop one from thinking about what may happen and what could apply. Indeed, the risk management obligations of the WHS laws may demand this speculative exercise in order to identify potential preventive actions, devices and systems.
For years it has been the case that if one wants to avoid an OHS prosecution, the best strategy is to prevent illness and injury. In this context how can one allow anyone on a farm to use a quad bike without a crush protection device, a helmet and adequate training? It is one thing to lose a relative to a quad bike rollover but it is another to be potentially prosecuted as well for a breach of work health and safety laws.