What is a person conducting a business or undertaking?

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Person conducting a business or undertaking

The term person conducting a business or undertaking or PCBU refers to the legal entity running the business or undertaking, and includes incorporated entities, sole traders, partners of a partnership and certain senior ‘officers’ of an unincorporated association. It also refers to the Commonwealth including its Departments, local governments and other government businesses and undertakings.

For the purposes of the anti-bullying provisions, a worker must be working in a constitutionally-covered business to be eligible to make an application. This means that not all PCBUs are covered by the anti-bullying provisions.

Public and private sector employers (including the self-employed) are the largest category of PCBU, but the term is broader and covers more than just employers – it includes principals that use contractors or subcontractors, franchisors and bailors.

A person (including a corporate entity)^[1] may conduct a business or undertaking alone or with others,^[2] and it is irrelevant whether the business or undertaking is conducted for profit or gain.^[3]

Businesses are usually enterprises operated with the aim of making a profit, and ‘have a degree of organisation, system and continuity’.^[4]

Undertakings usually have ‘elements of organisation, systems and possibly continuity, but are usually not profit-making or commercial in nature’.^[5]

Exclusions

The following are examples of what do not constitute a business or undertaking:

a person engaged solely as a worker in, or as an officer of, that business or undertaking
an elected member of a local authority (acting in that capacity),^[6] or
a wholly ‘volunteer association’ that does not employ anyone (whether incorporated or not).^[7]

Volunteer associations

Volunteer associations (whether incorporated or not) that do not employ anyone, do not conduct a business or undertaking.^[8] The Commission does not have power to deal with workplace bullying claims made by persons who may be at work in a volunteer association.

A volunteer association is a group of volunteers which acts together for one or more community purposes where none of the volunteers, either alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.^[9]

‘Acting together for one or more community purpose’ includes ‘philanthropic or benevolent purposes, including the promotion of art, culture, science, religion, education, medicine or charity’ and ‘sporting or recreational purposes, including the benefiting of sporting or recreational clubs or associations’.^[10]

If a person is employed to carry out work,^[11] the volunteer association may be considered a business or undertaking.

Related information

Case examples

A constitutionally-covered business

Where the worker was ‘at work’ in a business or undertaking conducted by a person who is a constitutional corporation – worker was employee of own business – Re Manderson

[2015] FWC 8231 (Hampton C, 7 December 2015).

Facts

The applicant was both a director and a worker of a business that provided caretaking services at a holiday resort that also had long term owners of properties. The applicant alleged that he was experiencing unreasonable behaviour from some of the owners of the properties, some of whom were also committee members for the bodies corporate for the resort.

The applicant and the respondent parties were in dispute as to whether the bodies corporate were constitutionally-covered businesses.

Outcome

The Commission did not need to determine whether the bodies corporate were constitutionally-covered businesses because it found that as the applicant was an employee of his own business which also employed other people, he was engaged by a PCBU and was therefore a ‘worker’ for the purposes of the WHS Act and the Fair Work Act. The applicant’s business was also a trading corporation. These two elements taken together meant that the applicant was at work in a business which was constitutionally covered. The necessary jurisdiction for the applicant to pursue his application was met.

Relevance

In this case, it was irrelevant whether the respondent parties were persons conducting a business or undertaking that is a constitutionally-covered business. Rather, what was significant was that the worker was at work in a constitutionally-covered business when allegedly being bullied.

NOT a constitutionally covered business

State Government – Re A.B.

[2014] FWC 6723 (Hampton C, 30 September 2014).

Facts

A.B. made an application under s.789FC of the Fair Work Act for an order to stop bullying. The application cited the Department of Education in New South Wales (the NSW Department) as his employer. The workplace was a New South Wales public school.

Outcome

The Commission found that A.B. was at work in an undertaking conducted by the NSW Department and the employer of A.B. was the Crown in the right of the State of New South Wales. The Department and/or the State of New South Wales are not corporations (and therefore not constitutional corporations). Accordingly, A.B. was not at work in a constitutionally-covered business. The Commission had no jurisdiction to deal with the application. The application was dismissed.

Relevance

In order for the Commission to deal with conduct covered by the anti-bullying laws, the conduct must take place whilst the worker is at work in a constitutionally-covered business. Not all national system employers are constitutionally-covered businesses as the anti-bullying provisions do not rely on the referrals from the States that support the definitions of ‘national system employer’ and ‘national system employee’ in the Fair Work Act.

Foreign Government Ministry – Re Stancu

[2015] FWC 1999 (Lee C, 26 March 2015).

Facts

The applicant made an application under s.789FC of the Fair Work Act for an order to stop bullying. He was a volunteer with Australian Volunteers International (AVI). The bullying was alleged to have taken place while he was engaged as a volunteer to perform work as a Sanitation Engineer in The Ministry of Public Works and Utilities (The Ministry) in South Tarawa, Kiribati. The applicant did not dispute that he performed work for The Ministry; however, he claimed that AVI also assumed an employer role and acted as the main employer ‘sub-contracting’ volunteers to the host organisation.

Outcome

The Commission found that, as a volunteer with the Australian Volunteers for International Development Program, the applicant was placed with a host organisation, The Ministry, for which the applicant worked.

The Ministry was located in Kiribati and did not fall within the scope of ss.789FD(3). As the applicant was not at work in a constitutionally-covered business when the alleged behaviour occurred, the application fell outside the jurisdiction of the anti-bullying provisions of the Fair Work Act. The Commission found there was no jurisdiction for the application to proceed and the application was dismissed.

Furthermore, the applicant would have been outside the geographic application of the Fair Work Act. While s.34(3) extends the operation of prescribed provisions of the Fair Work Act to Australian employers and Australian-based employees outside of Australia, the anti-bullying provisions are not so prescribed. Even if the anti-bullying provisions had been so prescribed, the applicant would have needed to be an Australian-based employee within the meaning of s.35 of the Fair Work Act. However, the applicant’s primary place of work was not in Australia and his attendance at pre-departure briefings in Australia was no more than an insubstantial part of his duties.

Relevance

Although AVI was a constitutionally-covered business, the applicant was not at work in that business but was instead at work in the Ministry.

Where workers are located outside of Australia, it may be necessary to consider both the geographical limits on the application of the Fair Work Act and whether the applicant is at work in a constitutionally-covered business when the alleged bullying took place.

References

^[1] See Acts Interpretation Act 1901 (Cth) s.2C. Note: This Act as in force on 25 June 2009 applies to the Fair Work Act (see Fair Work Act s.40A).

^[2] WHS Act s.5(1)(a).

^[3] WHS Act s.5(1)(b).

^[4] SafeWork Australia – Interpretive Guidelines to model WHS Act – The meaning of ‘person conducting a business or undertaking’, at p. 1.

^[5] ibid.

^[6] WHS Act s.5(5). It is however possible that an elected member could be an individual whose conduct could be relied upon as bullying behaviour under Fair Work Act s.789FD(1).

^[7] WHS Act s.5(7).

^[8] WHS Act s.5(7).

^[9] WHS Act s.5(8).

^[10] Explanatory Memorandum, Work Health and Safety Bill 2011 at para. 26.

^[11] For a discussion on the difference between employees and contractors, see Hollis v Vabu Pty Ltd [2001] HCA 44 (9 August 2001) at paras 39–58, [(2001) 207 CLR 21]; Abdalla v Viewdaze Pty Ltd t/a Malta Travel PR927971 (AIRCFB, Lawler VP, Hamilton DP, Bacon C, 14 May 2003) at para. 34, [(2003) 122 IR 215]. See also On Call Interpreters and Translators Agency Pty Ltd v Federal Commissioner of Taxation (No. 3) [2011] FCA 366 (13 April 2011) at paras 188–220, [(2011) 206 IR 252]; Fair Work Ombudsman v Metro Northern Enterprise Pty Ltd [2013] FCCA 216 (7 May 2013) at paras 13–25.

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Last updated

02 October 2019

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