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Contractor or Employee?

The PCBU - the risk owner.

A judge in an Employment court decision found a courier driver was legally an employee, even though he had a signed agreement stipulating he was an independent contractor.   Under the HSW Act an independent contractor would be classified as a PCBU.

Health and Safety at Work Act 2015
17 Meaning of a PCBU - a person conducting a business or undertaking
(i)  whether the person conducts a business or undertaking alone or with others; and
(ii)  whether or not the business or undertaking is conducted for profit or gain; but
(b)     does not include -
(i)      a person to the extent that the person is employed or engaged solely as a worker in, or as an officer of, the business or undertaking:
(ii)     a volunteer association:
(iii)    an occupier of a home to the extent that the occupier employs or engages another person solely to do residential work:
(iv)    a statutory officer to the extent that the officer is a worker in, or an officer of, the business or undertaking:
(v)    a person, or class of persons, that is declared by regulations not to be a PCBU for the purposes of this Act of any provision of this Act.

Examples of a business:

  • Retailer;
  • Wholesale business;
  • Manufacturing;
  • Importer who is on-selling imported;
  • Owner-driver of their own transport or courier business;
  • Fast food franchisor and the operator of the fast food outlet (franchisee);
  • A self-employed person operating their own business;
  • A building contractor (including principal contractors and sub-contractors);
  • Partners in a partnership;
  • Parties in an unincorporated joint venture.

Examples of an undertaking:

  • Government department or government agency;
  • Local council;
  • School or early childhood education service;
  • Charities like SPCA or Barnados.

Under the Health and Safety at Work Act 2015, the following are not PCBUs:

  • Volunteer associations (incorporated and unincorporated);
  • home occupiers, and or
  • workers.

    Businesses must be clear of who the PCBU, the officer and the worker/s are in their organisations and what their roles are.


 

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