PCBU Primary Duty of Care in New South Wales

What it is

Every person conducting a business or undertaking (PCBU) in New South Wales carries a primary duty of care under section 19 of the Work Health and Safety Act 2011 (NSW). The duty is to ensure, so far as is reasonably practicable, the health and safety of workers and other persons who could be put at risk by the work.

That duty is the backbone of the NSW WHS regime. Everything else - hazard identification, SWMS, notifiable incidents, industrial manslaughter, prosecutions - flows from section 19.

Section 19 primary duty

Section 19(1) of the WHS Act 2011 (NSW) requires a PCBU to 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 in carrying out work are influenced or directed by the PCBU while workers are at work in the business or undertaking.

Section 19(2) extends the duty to other persons who could be exposed to risks arising from the work carried on by the business or undertaking. That covers neighbours, visitors, delivery drivers, subcontractors' workers and members of the public.

What "reasonably practicable" means

Section 18 of the WHS Act 2011 (NSW) defines reasonably practicable. It is what is, or was at a particular time, reasonably able to be done to ensure health and safety, taking into account and weighing up all relevant matters including:

• the likelihood of the hazard or the risk concerned occurring
• the degree of harm that might result from the hazard or the risk
• what the person concerned knows, or ought reasonably to know, about the hazard or the risk and ways of eliminating or minimising it
• the availability and suitability of ways to eliminate or minimise the risk
• the cost of the available control measures, weighed against the risk

The cost limb is deliberately last. Cost cannot outweigh a significant health and safety risk in most cases.

Section 19(3) specific duties

Section 19(3) sets out specific duties within the primary duty. The PCBU must ensure, so far as is reasonably practicable:

• provision and maintenance of a work environment without risks to health and safety
• provision and maintenance of safe plant and structures
• provision and maintenance of safe systems of work
• safe use, handling and storage of plant, structures and substances
• provision of adequate facilities for the welfare of workers
• provision of information, training, instruction or supervision necessary to protect all persons
• monitoring health of workers and workplace conditions to prevent illness or injury

Those specific duties are not exhaustive. Section 19(3) opens with "without limiting subsection (1) or (2)".

Who is a PCBU

Section 5 of the WHS Act 2011 (NSW) defines a PCBU broadly. A person conducts a business or undertaking whether or not the person conducts the business or undertaking:

• for profit or gain
• alone or with others
• as a body corporate, sole trader, partnership, unincorporated association or otherwise

Volunteer organisations that engage paid workers are PCBUs. Sole trader tradespeople with no employees are PCBUs. A residential builder is always a PCBU.

Officers of a PCBU

Section 27 imposes a duty on officers of a PCBU (typically directors and senior managers) to exercise due diligence to ensure the PCBU complies with its duties. Due diligence includes acquiring and maintaining knowledge of work health and safety matters, understanding the nature of the operations and the associated hazards and risks, and ensuring resources and processes are available for compliance.

Officer due diligence prosecutions are increasingly common. Directors of building companies cannot delegate WHS compliance to on-site supervisors and expect to avoid personal liability.

Penalties

Section 32 category 3 offence carries penalties up to $100,000 for an individual and $500,000 for a body corporate. Section 33 category 2 offence (higher risk conduct) carries penalties up to $300,000 for an individual and $1,500,000 for a body corporate. Section 31 category 1 offence (reckless conduct with high risk) carries penalties up to $600,000 or 5 years imprisonment for an individual and $3,000,000 for a body corporate.

Industrial manslaughter under section 34C carries penalties up to $20 million for a body corporate and $2 million or 25 years imprisonment for an individual.

How NSW compares

NSW adopts the model WHS Act 2011 with some jurisdictional variations. Every other state and territory except Victoria has similar section 19 duties. Victoria retains the Occupational Health and Safety Act 2004 (Vic) with its own but broadly comparable framework.

The NSW industrial manslaughter offence penalties are the highest in Australia. The $20 million corporate penalty was set in 2024 amendments.