PCBU and Employer Primary Duty of Care Across Australian Jurisdictions

What it is

Primary duty of care obligations are broadly consistent across Australia despite the framework differences between model WHS jurisdictions and Victoria. Seven states and territories (NSW, QLD, WA, SA, TAS, ACT, NT) use "PCBU" (Person Conducting a Business or Undertaking) terminology under the model WHS Act. Victoria uses "employer" and "self-employed person" under the OHS Act 2004 (Vic).

The substantive obligations align significantly, giving builders a consistent operational compliance framework even where terminology differs.

The primary duty formulation

Model WHS Act (7 jurisdictions):

• section 19(1): PCBU must ensure, so far as is reasonably practicable, the health and safety of workers engaged, or caused to be engaged, by the PCBU and workers whose activities are influenced or directed by the PCBU
• section 19(2): extends to other persons who could be exposed to risks arising from the work

OHS Act 2004 (Vic):

• section 21(1): employer must provide and maintain, so far as is reasonably practicable, a working environment that is safe and without risks to the health of employees
• section 23: extends to persons other than employees

The core duty is substantively the same. Terminology and structure differ.

Reasonably practicable test

Both frameworks use a substantively identical five-factor test:

• likelihood of the hazard eventuating
• degree of harm that could result
• knowledge of the hazard and control measures
• availability and suitability of controls
• cost weighed against the risk

Model WHS Act: section 18 OHS Act 2004 (Vic): section 20

Specific duties

Both frameworks impose comparable specific duties:

• safe work environment
• safe plant and structures
• safe systems of work
• safe use of substances
• welfare facilities
• information, training and instruction
• health monitoring

Model WHS Act enumerates these under section 19(3); OHS Act 2004 (Vic) under section 21(2).

Officer accountability

Both frameworks impose personal due diligence duties on officers:

• Model WHS Act: section 27 due diligence duty on officers of a PCBU
• OHS Act 2004 (Vic): section 144 offence for officers where the corporate has committed an offence and the officer failed to exercise due diligence

Substantive scope aligns: directors, secretaries and executive officers with senior control face personal liability.

Category offences

Both frameworks operate three-tier offence structures:

• Category 1 / Reckless endangerment (highest culpability)
• Category 2 / Breach of duty with exposure
• Category 3 / Breach without exposure

Penalties vary by jurisdiction but the tier structure is broadly comparable.

Industrial manslaughter

Each jurisdiction has its own industrial manslaughter or workplace manslaughter offence with different penalty scales and elements. See the industrial-manslaughter-comparison-aus entry for the full comparison.

Notifiable incidents

The most significant operational difference is notifiable incident notification:

• Model WHS Act: immediate telephone notification; written notice only if regulator requests
• OHS Act 2004 (Vic): immediate telephone notification; automatic 48-hour written notice under section 38(4)

Victoria-operating builders should not follow model WHS practice on written notification.

SWMS and construction industry duties

Both frameworks require SWMS for high-risk construction work:

• Model WHS Regulation: regulations 291 (18 categories), 299 (SWMS requirement)
• OHS Regulations 2017 (Vic): regulations 5.1.9 (categories), 5.1.11 (SWMS requirement)

The 18 categories align substantively with some Victoria-specific refinements.

National consistency vs harmonisation

The model WHS Act framework's aim was national consistency. Substantive consistency has been achieved on primary duty of care, category offences, notification framework structure, SWMS and worker consultation. Divergences remain on:

• terminology (PCBU vs employer)
• specific regulation numbering
• industrial manslaughter penalties and elements
• some notification requirements (Victoria's automatic 48-hour written notice)
• crystalline silica reforms use different reg numbering

Complete harmonisation would require Victoria to adopt the model WHS Act - a step the Victorian government has consistently declined to take.

Practical compliance approach

Residential builders operating across multiple jurisdictions should:

• treat primary duty of care obligations as consistent across all 8 jurisdictions
• use jurisdiction-specific terminology in written policies and procedures
• follow jurisdiction-specific notification requirements (particularly Victoria's automatic 48-hour written notice)
• coordinate industrial manslaughter compliance with local regulator requirements
• use jurisdiction-specific regulation citations in templates and training

TradeForm coordinates compliance across all 8 jurisdictions with a common substantive baseline and jurisdiction-specific overlays.