• Stuart Keer-Keer
    29
    My apologies if this question has been answered before. If there is a large company say Kiwi Rail or Air New Zealand who is the PCBU?
  • Steve H
    202
    Ultimately, the company's board of Directors and devolving down through divisions to local branch level. So day to day, Manager of the local site/branch, no satisfaction/improvement, take it up the chain till you hit the button that works.
  • Chris Anderson
    58


    Kiwi Rail or Air NZ are the PCBU. In this instance the person isn't a literal human being, instead the organisation is deemed a person. This is called a legal fiction.

    https://www.worksafe.govt.nz/managing-health-and-safety/getting-started/understanding-the-law/primary-duty-of-care/who-or-what-is-a-pcbu
  • Stuart Keer-Keer
    29
    Thanks - I have read that but it does not answer my question.
  • Steve H
    202
    Maybe if you reframed the question slightly Stuart, are you talking ultimate liability for a situation/workplace, or responsibility for informing or cooperating with other PCBUs that might be affected by the large company?
  • Mark Kenny-Beveridge
    36
    Hi Stuart, another link that may help is https://legalvision.co.nz/employment/pcbu/ written by
    by Matthew Bartlett. He explains it rather simply by stating " Despite the reference to ‘person’, a PCBU can either be a person or an organisation. In terms of health and safety law, in most cases, the PCBU will be an organisation (usually, a company or other business entity)."
  • Stuart Keer-Keer
    29
    So if you were to go into any business, say a factory that is welding. There are risks from the welding that are not managed. Who is accountable, is it a person? The supervisor, the manager, the CEO, the share holder.

    The same for all business's is a person held accountable for not managing hazards. If so who is that person?

    Take Fred and Bill the builders who build houses. Fred and Bill are the bosses but the company is owned by Bert who has retired? There is Simon who is the supervisor.
  • KeithH
    61

    This is WorkSafe's interpretation:
    "A PCBU means a Person Conducting a Business or Undertaking.
    It's a broad concept used throughout HSWA to describe all types of modern working arrangements which we commonly refer to as businesses.
    Most New Zealand businesses, whether large corporates, sole traders, or self-employed, are classed as PCBUs.
    The difference between a business and an undertaking is:
    businesses are usually conducted with a view to making a profit and have a degree of organisation, system and continuity.
    undertakings will have elements of organisation, systems, and possible continuity, but are usually not profit-making or commercial in nature."

    So, while PCBU is stated in legislation as a ‘Person Conducting a Business or Undertaking’ (HSWA 17(1)(a)), the interpretation is that businesses are PCBUs (see Legalvision) regardless of whether sole traders, partnerships or limited liability companies.

    A PCBU's primary duty is to ensure so far as reasonably practicable the health and safety of its workers while at work for the PCBU and any workers whose activities in carrying out work are influenced or directed by the PCBU while carrying out the work (e.g. temp workers) - see Brookfields


    Responsibility for ensuring the PCBU meets its duties, is the role of officers in the business (HSWA 44(1)).

    WorkSafe's interpretation is
    "An officer holds a specific role in an organisation that allows them to exercise significant influence over the management of the business or undertaking. Officers have a due diligence duty under the Health and Safety at Work Act 2015 (HSWA)." See Officers' due diligence


    So in your example:
    "Take Fred and Bill the builders who build houses. Fred and Bill are the bosses but the company is owned by Bert who has retired? There is Simon who is the supervisor."

    The business owned by Bert that is run by Bill and Fred and employs Simon is a PCBU
    If Fred and Bill have significant influence over how the business is run then they are officers and have duties
    If Bert has significant influence over how the business is run then he is an officer and has duties
    If Bert does not have significant influence over how the business is run then he is not an officer and does not have duties.
    Same applies to Simon.
  • Stuart Keer-Keer
    29
    Ahh - lightbulb moment. So the Officers due diligence is the key! This aids my understanding a lot. Thank you.
  • Jan-Ulf Kuwilsky
    22
    Sounds like you've got it, Stuart.
    Rightly or wrongly,
    I've always thought of the PCBU is the legal entity that is the company, except when it is a one-person company.
    Officers are in charge of the due diligence, planning and funding aspects of H&S. They're the ones who exercise significant control over the company. My simplistic interpretation on this is money based. Those setting budgets and deciding where to allocate funding are Officers, in my mind. Think Directors, C suite and maybe GM level.
    The rest are Workers.

    Of course, my understanding could be totally wrong
  • Alan Boswell
    13
    Hi Stuart,
    I have spent a lot of time trying to explain this to senior managers and owners as it is quite confusing. It is the phrase 'Person' in PCBU that misleads folks. PCBU is the company or organisation as a legal entity - the company has an obligation to look after anyone who works for it, does work for it (contractors) or could be affected by work it carries out. It does this by using systems and procedures such as risk analysis, accident reporting and so. Business owners/directors etc. (Officers) act as kind of a backstop for this, they are there to make sure the company (PCBU) is doing what its supposed to to keep those folks safe. They can do this by making sure that those procedures are up to date, emergency drills have been carried out, accidents are being reported and investigated to mention just a few of their duties. This is traditionally done at BoD meetings, but they should be taking a more hands role, getting out into the workplace to talk to workers and getting an understanding of what their people face everyday.
    So, to answer your question who in the company is accountable? Nobody is accountable in the sense that if the company was prosecuted it is the company that would be fined and sanctioned. Think about which bank account the fine would come out of! The directors/owners would not personally suffer financially but the company would. This is different to the Officer being prosecuted - that is a personal fine/sanction.
    In another, more practical sense everyone is responsible to make sure they follow process and instruction, failure to do this means the company may have to explain why those processes weren't robust enough to prevent someone getting hurt.
    I apologise if this is overly simplistic, if you need help please feel free to shout out on
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