Why ‘we’re not a company’ is not a WHS defence

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By Rhys Hutchinson
05 Jan 26

The misconception: “WHS only applies to companies”
How the WHS Act actually approaches responsibility
Common non-company arrangements that are still PCBUs
Sole traders and individual operators
Partnerships and professional practices
Committees, associations, and boards that employ workers
Incorporated associations and not-for-profit entities
Why this matters
Why this leads to personal exposure and penalties
Why regulators are not persuaded by structure-based arguments
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Why ‘we’re not a company’ is not a WHS defence

How the WHS Act captures partnerships, sole traders, committees and other non-corporate arrangements

Many people assume WHS obligations sit with companies.

That assumption fails as soon as a business is run through a partnership, sole trader arrangement, or informal committee and it is one of the most common ways people expose themselves to WHS liability (heavy fines) without realising it.

The misconception: “WHS only applies to companies”

A common assumption in WHS is that legal duties sit primarily with companies. In practice, many people associate WHS compliance with corporate governance, board structures, and formal management systems, and assume that if an organisation is not incorporated, WHS obligations are somehow reduced or absent.

This assumption is incorrect.

The WHS Act does not regulate companies. It regulates work. As a result, the Act deliberately avoids corporate terminology and instead uses the concept of a person conducting a business or undertaking (PCBU) to capture all forms of organised work, regardless of legal structure.

This misconception most often arises in:

Partnerships and professional practices
Sole trader and family business arrangements
Committees and associations
Small businesses operating outside a corporate structure

In these settings, WHS responsibility is frequently assumed to sit “somewhere else” with a manager, a host organisation, or not at all.

That assumption only becomes visible after an incident, when individuals discover that WHS duties attach to the business or undertaking itself, not to whether it is a company.

How the WHS Act actually approaches responsibility

The WHS Act intentionally adopts a functional approach to responsibility. Rather than asking what type of legal entity is involved, the Act asks a more practical question:

Who is conducting work, and who has the capacity to influence how that work is carried out?

To achieve this, the Act defines a person conducting a business or undertaking (PCBU) broadly. A “person” includes individuals as well as bodies corporate, and a “business or undertaking” includes activities carried out:

Alone or with others
For profit or not for profit

This design ensures that WHS duties cannot be avoided by choosing a particular legal structure. Whether work is performed through a company, a partnership, a sole trader arrangement, or an association is largely irrelevant. If work is being conducted, and people may be exposed to risk, the WHS Act will impose duties on the entity or individuals responsible for that work.

Importantly, incorporation does not create WHS obligations, it merely changes who holds them and how they are enforced. In non-corporate arrangements, those duties may attach directly to individuals or groups of individuals, rather than to a separate legal entity.

This is why statements such as “we’re not a company” or “we’re just a partnership” provide no protection under WHS law. The Act is concerned with control, influence, and exposure to risk, not with corporate form.

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Common non-company arrangements that are still PCBUs

Because the WHS Act focuses on work and risk, rather than legal form, many non-corporate arrangements are treated as PCBUs. In practice, this captures a range of structures where people often assume WHS obligations are reduced or do not apply.

Sole traders and individual operators

A sole trader conducting work is a PCBU in their own right. There is no separation between the individual and the business for WHS purposes. If the work exposes workers, contractors, or members of the public to health and safety risks, the sole trader owes the primary duty of care under section 19.

This commonly affects:

Trades and construction services
Consultants and technical specialists
Small service businesses engaging contractors or labour hire

The absence of a company structure does not reduce WHS obligations; it simply means the duties and potential penalties attach directly to the individual.

Partnerships and professional practices

Unincorporated partnerships are expressly captured by the WHS Act. Where a business is conducted by a partnership, each partner is treated as a PCBU in relation to that business or undertaking.

This has particular relevance for:

Law firms
Accounting and advisory practices
Medical and allied health practices
Family-run businesses operating as partnerships

In these arrangements, WHS responsibility does not sit with an abstract “firm”. It sits with the partners themselves. Each partner can be exposed to PCBU-level duties and penalties if the partnership fails to meet its WHS obligations.

Where a business is conducted by a partnership, each partner is treated as a PCBU in relation to that business or undertaking.

Committees, associations, and boards that employ workers

Committees and associations are often assumed to fall outside WHS law, particularly where they operate for community or not-for-profit purposes. That assumption is only correct while the organisation remains a volunteer association.

As soon as an association or committee:

Employs even one person, or
Otherwise engages workers in a way that creates an employment relationship

it ceases to be a volunteer association and is treated as a PCBU under the Act. WHS duties then apply to the organisation, and officer due diligence obligations apply to those in governance roles.

This is a common point of exposure for sporting clubs, charities, and community organisations transitioning from purely volunteer-run activities to employing staff.

Incorporated associations and not-for-profit entities

Incorporation under associations or corporations legislation does not remove WHS obligations. Incorporated associations and not-for-profit entities that conduct work and employ workers are PCBUs, regardless of their charitable or community purpose.

In these cases:

The entity holds the PCBU duty, and
Office holders such as directors or committee members may be officers with due diligence obligations

The WHS Act does not distinguish between for-profit and not-for-profit when it comes to managing risk arising from work.

Why this matters

In each of these arrangements, the critical error is assuming that WHS responsibility depends on being a company. In reality, responsibility follows control over work. Where individuals or groups organise work, direct how it is performed, or benefit from it, the WHS Act will impose duties accordingly.

Understanding this distinction before an incident occurs is essential for anyone involved in governance, partnership structures, or non-corporate business arrangements.

Why this leads to personal exposure and penalties

The practical consequence of the PCBU definition is that liability follows function, not form. Where a person or group is found to be conducting a business or undertaking, the WHS Act attaches enforceable duties regardless of whether the activity is informal, small-scale, or non-corporate.

For PCBUs, the primary duty under section 19 requires, so far as is reasonably practicable, the health and safety of:

Workers engaged by the PCBU (including contractors and labour hire), and
Other persons who may be put at risk by the work (clients, customers, members of the public).

Where this duty is breached, PCBU-level penalties apply, including significant fines and, potential imprisonment. Importantly, the absence of a company structure does not shield individuals from enforcement action it often has the opposite effect, as liability can attach directly to natural persons.

In partnership arrangements, this exposure is amplified. Because each partner is deemed to be a PCBU, regulators are not required to identify a single “responsible” partner. Any or all partners may be subject to enforcement action if WHS obligations are not met.

Why regulators are not persuaded by structure-based arguments

Regulators and courts consistently reject arguments that attempt to avoid WHS duties by relying on organisational labels such as:

“We’re not a company”
“We’re just a committee”
“We’re a small operation”
“Everyone involved is basically a volunteer”

The WHS Act was deliberately drafted to avoid these arguments. Sections 5(1-8) operate together to ensure that:

Organised work is regulated regardless of legal sophistication, and
Duty holders cannot opt out of WHS responsibilities through structural choices

From an enforcement perspective, the key questions are:

Who is organising or directing the work?
Who has the capacity to influence how work is carried out?
Who controls the risks arising from the work?

If those questions point to a person or group exercising control, then WHS duties will attach irrespective of whether the entity is incorporated, informal, or community-based.

For officers, this creates an additional layer of exposure. Even where an entity is the PCBU, individuals in governance roles must still meet due diligence obligations. A lack of understanding of the PCBU concept is not a defence.