Regulatory guide - People under the WHS Act
We publish this regulatory guide to assist the organisations and entities we regulate.
The Work Health and Safety Act 2011 (WHS Act) defines certain persons according to their roles or functions.
The definitions apply for the purposes of both the WHS Act and the Work Health and Safety Regulations 2011 (WHS Regulations).
1. Regulator, inspectors
Comcare is the ‘regulator’ for the purposes of the WHS Act.[1] Comcare’s functions as the regulator are set out in section 152.
For most of its regulatory functions, Comcare acts through staff members:
- whom Comcare has appointed as inspectors,[2] or
- to whom Comcare has delegated any powers or functions.[3]
An inspector is issued with an identity card and must produce it for inspection on request when exercising any of the functions or powers conferred on an inspector under the WHS Act or the WHS Regulations.[4]
2. Person conducting a business or undertaking
Section 5 of the WHS Act gives the meaning of 'person conducting a business or undertaking' (PCBU). The expression 'person who conducts a business or undertaking' is taken to have the same meaning.
The WHS Act does not have definitions of ‘business’ or ‘undertaking’. It has been suggested that:
- a business is an enterprise that is usually conducted with a view to profit and with a degree of organisation, system and continuity
- an undertaking may have elements of organisation, system and continuity, but is usually not operated for profit.[5]
However, the WHS Act always uses ‘business’ and ‘undertaking’ together, so it is not strictly necessary to distinguish between them. Further, section 5(1)(b) specifies that a person conducts a business or undertaking whether or not the business or undertaking is conducted for profit or gain.
In Commonwealth legislation, a ‘person’ includes a body politic or corporate as well as an individual.[6] This means that a 'person who conducts a business or undertaking' could include:
- the Commonwealth
- a corporation incorporated under the Corporations Act 2001
- an incorporated association[7]
- a body corporate established under specific legislation.[8]
Section 5 of the WHS Act defines a 'person conducting a business or undertaking' to include:
- a person who conducts a business or undertaking with others[9]
- a partnership that conducts a business or undertaking[10]
- an unincorporated association that conducts a business or undertaking.[11]
A volunteer association does not conduct a business or undertaking.[12]
In most cases, the concept of a ‘person conducting a business or undertaking’ is used in relation to a person who carries out work in any capacity for the person conducting the business or undertaking (‘worker’) and a place where work is carried out for the business or undertaking (‘workplace’).
3. Commonwealth, public authority, non-Commonwealth licensee
The Commonwealth means the Commonwealth of Australia,[13] and is expressly stated for the purposes of the WHS Act to include any person or body, other than a public authority, that is a ‘non-corporate Commonwealth entity’ as defined in the Commonwealth Public Governance, Performance and Accountability Act 2013 (PGPA Act). [14] A non-corporate Commonwealth entity is a Commonwealth entity that is not a body corporate.[15] Subject to some qualifications, this will normally mean a Department of State such as the Department of Employment or Services Australia.
The two main types of public authority are:
- a body corporate established for a public purpose by or under a law of the Commonwealth
- a ‘Commonwealth company’.[16]
A body corporate established for a public purpose by or under a law of the Commonwealth will normally be a ‘corporate Commonwealth entity’ as defined in the PGPA Act.[17] A Commonwealth company is a company incorporated under the Corporations Act 2001 that the Commonwealth controls. [18]
A non-Commonwealth licensee is a body corporate that was a non-Commonwealth licensee for the purposes of the Commonwealth Occupational Health and Safety Act 1991 immediately before the commencement of the WHS Act on 1 July 2012, for which the key criterion was holding a licence under part VIII of the SRC Act (whether or not the licence was suspended).[19]
4. Officer
An officer of the Commonwealth is a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of a business or undertaking of the Commonwealth.[20] However, a Minister of the Commonwealth is not in that capacity an officer of the Commonwealth.[21]
An officer of a public authority is a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of a business or undertaking of the public authority.[22]
Provisions in the WHS Act that relate to an ‘officer’ will apply to an officer of a non-Commonwealth licensee. For a non-Commonwealth licensee, an ‘officer’ is an officer as defined in section 9 of the Corporations Act 2001.[23] Remembering that a non-Commonwealth licensee is by definition a corporation, the officers will most commonly be:
- a director or secretary of the corporation
- a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation.
5. Worker
Section 7 of the WHS Act defines who is a ‘worker’. The definition extends the normal scope of the employment relationship, by stating that a ‘worker’ is a person who carries out work in any capacity for a 'person conducting a business or undertaking' (PCBU), including work as:
- an employee
- a contractor or subcontractor
- an employee of a contractor or subcontractor
- an employee of a labour hire company who has been assigned to work in the person’s business or undertaking or
- an outworker
- an apprentice or trainee
- a student gaining work experience
- a volunteer.
Section 7 goes on to provide, amongst other things, that the following persons are ‘workers’:
- the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police or an AFP employee
- a member of the Defence Force.
However, they are only ‘workers’ and ‘at work’ when they are on duty or lawfully performing their functions. They are taken to be employees of the Commonwealth.
There is no definition of ‘work’ for the purposes of the WHS Act, but it must include the types of duties and services performed by ‘workers’. It has been suggested that ‘work’ does not include activities of a purely domestic, recreational or social nature.[24]
References
[1] WHS Act, section 4 definition of ‘regulator’.
[2] WHS Act, section 156.
[3] WHS Act, section 154.
[4] WHS Act, section 157.
[5] Safe Work Australia, Interpretive guideline—model Work Health and Safety Act—the meaning of ‘person conducting a business or undertaking’.
[6] Acts Interpretation Act 1901, section 2C(1).
[7] Associations can be incorporated under state or territory legislation, such as the Associations Incorporation Reform Act 2012 (Vic) or the Associations Incorporation Act 1987 (WA).
[8] See footnote 17 below.
[9] WHS Act, section 5(1)(a).
[10] WHS Act, section 5(2).
[11] WHS Act, section 5(2).
[12] WHS Act, section 5(7).
[13] Acts Interpretation Act 1901, section 2B definition of ‘Commonwealth’.
[14] WHS Act, section 4 definition of ‘Commonwealth’.
[15] PGPA Act, sections 10 and 11.
[16] WHS Act, section 4 definition of ‘public authority’. Entities can be included or excluded by regulation. See WHS Regulations, regulation 6C for a list of prescribed bodies corporate.
[17] See PGPA Act, sections 10 and 11. For example, Comcare is a body corporate established by the SRC Act; the Australian Securities and Investments Commission is a body corporate that was established under the Australian Securities and Investments Commission Act 1989 and that continues in existence under the Australian Securities and Investments Commission Act 2001.
[18] PGPA Act, section 89. There are some exclusions, and the meaning of Commonwealth ‘control’ is specified.
[19] WHS Act, section 4 definition of ‘non-Commonwealth licensee’.
[20] WHS Act, section 247(1).
[21] WHS Act, section 247(2).
[22] WHS Act, section 252.
[23] WHS Act, section 4 definition of ‘officer’. A partner in a partnership is excluded.
[24] Safe Work Australia, Interpretive guideline—model Work Health and Safety Act—the meaning of ‘person conducting a business or undertaking’.
