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.
I wonder what it means in practical terms (other than when facing a prosecution). If we are focused on safety on the farm, it doesn\’t really matter how the person is paid (or not), they would still be subject to the norms of the place. The safety systems would still be in place.
It does tend to fall apart though, when city cousins come to visit and want to be part of the action. It\’s hard to imagine putting them through a full induction complete with signed paper trail just to go for a walk and help round up the cows for milking. It would be a terrible shame not to let them beyond the garden fence but I suppose that\’s where we are headed.
All states recognise quads as ‘plant’ or ‘powered mobile plant’ and some list quads as ‘plant’. The legislation is quite clear on the subject (The WHS Act 2011 Division 2. 19 (2) Primary duty of care.) reads;
A person conducting a business or undertaking has the primary duty under the Act to ensure, as far as reasonably practicable, that workers and other persons are not exposed to health and safety risks arising from the business or undertaking.
(3) …ensure, so far as is reasonably practicable (b) the provision and maintenance of safe plant
The Regulations of the ‘Act’ are more specific
214 Powered mobile plant—general control of risk
The person with management or control of powered mobile plant at a workplace must in
accordance with Part 3.1, manage risks to health and safety associated with the following:
(a) the plant overturning; …………
Where do volunteers fit in to this Kevin and are sub contractors different to contractors under WHS
nice article by the way
Mick, I think that focusing on volunteers may be a distraction when thinking about the safety of people on farms. If I had family friends helping out killing some pigs or on the header or fencing or rabbiting, I would have a responsibility for their safety under both public liability and occupational health and safety laws. Whether we label them volunteers or friends volunteering their time, our duty of care remains the same.
I think this is one of the major aims of the latest Australian work health and safety laws. If someone is working on a farm or helping you with your work chores, they are also working and they should be safe. That should also be our focus – the safety of our friends and neighbours, and not which sector of insurance or law requires us to protect our friends and workers from harm. Let\’s look at how we can eliminate harm in a task instead of watching out for how our errors can be categorised.
I think others in Australia who state that new WHS laws will not improve safety are, in fact, saying that our duty of care and the safety of ourselves and others has been neglected for years and new laws will not change that neglect. Perhaps, but maybe if we focus on keeping people safe, compliance with laws will automatically flow.
Anyway, call me naive but it is the weekend and I can ponder workplace safety in a broader context, if I want to. Or I can cook the leeks I have just pulled out of my vegetable patch. Perhaps the latter on this sunny Spring day.