When it comes to workplace health and safety (WHS), the construction, development and infrastructure industries are the most heavily regulated; and rightly so, as it is these industries that are responsible for the highest number of workplace fatalities and serious injuries each year. It is also these industries where workers are frequently required to complete inherently dangerous works such as operating heavy machinery, working at heights, in confined spaces, in trenches, and using dangerous materials.
Since the implementation of the WHS laws across Australia, the legislature has grappled with issues regarding how to best ensure the safety of workers in these industries so far as reasonably practicable. Terms such as “safe work method statement” (SWMS), “high risk construction works” and “principal contractor” were legislated to impose specific duties on companies, officers and workers to reduce the risk of the unique dangers inherent to these industries.
This article provides a summary of these specific risks and duties, and what industry stakeholders must know to ensure compliance.
Principal Contractor: Who are they and what duties do they owe?
By default, a person conducting a business or undertaking (PCBU) that commissions construction work valued at $250,000 or more (often referred to as the client or principal) is the principal contractor. However, as is often the case, that role and responsibility is delegated under a contract to the head contractor by authorising them to have management or control of the workplace where the construction work will take place. Under the WHS Act, the principal contractor has various duties which must be complied with as summarised below.
- Primary Duty: Workplace safety is not just a legal box to tick, it is a fundamental responsibility of every PCBU, including the principal contractor. This duty focuses on ensuring the health and safety of workers while they are carrying out works related to the business or undertaking. It also extends to ensuring that those who might be affected, such as visitors, are not put at risk from the work. This demonstrates the principal contractor’s obligations to all those who come into contact with the project in any capacity. Under Queensland WHS legislation, principal contractors must:
a. eliminate risks so far as is reasonably practicable, or if this is not possible, minimise risks so far as is reasonably practicable;
b. provide and maintain a work environment that is without risks to health and safety;
c. provide and maintain safe plant and structures;
d. provide and maintain safe systems of work;
e. ensure the safe use, handling and storage of plant, structures and substances;
f. provide adequate and accessible facilities for the welfare of workers in carrying out work;
g. provide any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from the work;
h. monitor the health of workers and the conditions at the workplace for the purpose of preventing illness or injury; and
i. maintain any accommodation owned or under their management and control to ensure the health and safety of workers occupying the premises.
2. Psychological Safety: WHS laws impose a positive duty on a PCBU to eliminate or minimise risks related to stress, bullying, harassment, and other psychosocial hazards. These requirements, which came into effect in 2023, mean that PCBUs should identify psychosocial hazards, assess the level of risk, control the risks, eliminating and minimising them where possible, and continually review the measures which have been implemented.
3. Consultation with Workers: A PCBU must consult with workers who carry out work for the business or undertaking and who are, or are likely to be, directly affected by a matter relating to work health or safety. Consultations must occur frequently to ensure standards are being upheld and complied with.
4. Duties relating to plant, substances or structures used in workplaces: A PCBU who designs, manufactures, imports or supplies plants, substances or structures used or could reasonably be expected to be used at a workplace must ensure, so far as is reasonably practicable, that the plant, substance or structure are without risks to health and safety. Furthermore, a PCBU who installs, constructs or commissions plant or structures must ensure, so far as is reasonably practicable, that the way in which the plant or structure is installed, constructed or commissioned is without risks to health or safety.
5. Managing Specific Workplace Risks: A PCBU must comply with specific requirements that relate to certain hazards or hazardous work, including: hazardous atmospheres or chemicals; asbestos; confined spaces; plant; falls or falling objects; hazardous manual tasks; and diving work.
6. Further WHS Duties:
a. manage risks associated with construction materials and waste, plant, traffic and essential services; and
b. ensure compliance with requirements relating to facilities and amenities.
Specific duties of principal contractors:
Principal contractors are in a unique position with their overseeing role, meaning they have additional duties beyond those of a standard PCBU. They are not limited to the management of their own safety obligations but are the central safety authority for the entire project. This means there are several parties that principal contractors need to be aware of and responsible for. These duties are specific to their role in managing and controlling the workplace:
- WHS Management Plan: The principal contractor must prepare a written WHS management plan for the workplace before work commences. They have a duty to inform all persons of the plan, and a further duty to review and revise the plan to ensure it remains up-to-date.
- Signage Identifying the Principal Contractor: The principal contractor must ensure visible signs are installed to show their name and telephone contact numbers, and the location of the site office.
- High Risk Construction Work – SWMS: The principal contractor must take all reasonable steps to obtain a copy of the SWMS relating to high risk construction work. We explore this duty below.
The typical dynamic on construction projects is that the head contractor (i.e. the principal contractor) engages subcontractors and suppliers to undertake the specific trades and scopes of work. It is important to recognise that under this engagement the principal contractor’s duty to ensure safety is not fulfilled simply by engaging an experienced subcontractor. This duty was highlighted following the tragic incident in 2017 on the $60m Barangaroo Ferry Terminal Project in Darling Harbour, Sydney. A worker, employed by Brady Marine & Civil Pty Ltd, an experienced piling and marine subcontractor, tragically died as a result of an unsecured heavy metal headstock beam falling and crushing him.
The District Court of New South Wales decision underscored a critical point. Despite the subcontractor’s expertise, McConnell Dowell Constructors, as the Principal Contractor, retained the ultimate responsibility for ensuring the health and safety of workers on the site. The Court determined that McConnell Dowell had a duty to ensure, so far as was reasonably practicable, the health and safety of workers employed by its subcontractors, by supervising the works, carrying out periodic inspections and correcting any unsafe practice identified during such inspections.
Engaging an experienced subcontractor does not automatically absolve a principal contractor of their duties. Principal contractors must actively manage and enforce safety standards throughout the project, no matter how qualified the subcontractors may be.
High Risk Construction Work
Construction, as one of Australia’s most hazardous industries, has high risk work as a routine part of the industry. This means the line between routine tasks and life-threatening situations can blur in an instant. It is precisely this reality that has prompted WHS Regulations to establish clear classifications for high risk construction work due to their potential to cause serious injury or death.
These classifications assist in providing a framework to implement appropriate safeguards. High risk construction work includes:
- involves a risk of a person falling more than 2m; or
- is carried out on a telecommunication tower; or
- involves demolition of an element of a structure that is load-bearing or otherwise related to the physical integrity of the structure; or
- involves, or is likely to involve, the disturbance of asbestos; or
- involves structural alterations or repairs that require temporary support to prevent collapse; or
- is carried out in or near a confined space; or
- is carried out in or near—
a. a shaft or trench with an excavated depth greater than 1.5m; or
b. a tunnel; or
- involves the use of explosives; or
- is carried out on or near pressurised gas distribution mains or piping; or
- is carried out on or near chemical, fuel or refrigerant lines; or
- is carried out on or near energised electrical installations or services; or
- is carried out in an area that may have a contaminated or flammable atmosphere; or
- involves tilt-up or precast concrete; or
- is carried out on, in or adjacent to a road, railway, shipping lane or other traffic corridor that is in use by traffic other than pedestrians; or
- is carried out in an area at a workplace in which there is any movement of powered mobile plant; or
- is carried out in an area in which there are artificial extremes of temperature; or
- is carried out in or near water or other liquid that involves a risk of drowning; or
- involves diving work.
Safe Work Method Statement
A PCBU that carries out high risk construction work has additional WHS duties, with penalties imposed for non-compliance. One of the key duties relates to SWMS and the requirement to ensure a SWMS is prepared before the high risk construction work commences. The SWMS is a blueprint to navigate dangerous activities safely, identifying the steps and measures that must be adopted and followed with strict adherence. The SWMS must be consistently referred to, complied with and reviewed frequently to maintain standards.
A SWMS is a legal requirement designed to prevent accidents before they happen. As Judge Loury explained in Steel Construct Australia Pty Ltd v Guilfoyle [2021] QDC 124 at [15], “the purpose of such a statement … is to assist supervisors, workers and other persons at a workplace to understand the requirements that have been established to carry out high risk construction work in a safe manner.” This means the SWMS must be clear, accessible, and easily understood by all workers involved in high risk construction work. In fact, the courts have repeatedly emphasised the importance of workers being aware of the SWMS, a factor the court will consider when assessing the seriousness of the offending (SafeWork NSW v Universal Propping Supports Pty Ltd [2023] NSWDC 34). A failure to provide accessible and well-understood safety guidelines is not treated as a simple oversight. It can have serious legal and safety consequences.
A SWMS must:
- identify the work that is high risk construction work; and
- state hazards relating to the high risk construction work and risks to health and safety associated with those hazards; and
- describe the measures to be implemented to control the risks; and
- describe how the control measures are to be implemented, monitored and reviewed; and
- be expressed in a way that is readily accessible and understandable to the people who use it; and
- be given to the principal contractor; and
- be kept until the high risk construction work is completed, or if a notifiable incident occurs in connection with the high risk construction work, for at least two years after the incident occurs.
a. a notifiable incident, as defined in s 35 of the Act, includes:
i. the death of a person; or
ii. a serious injury or illness of a person; or
iii. a dangerous incident.
Where high risk work is not carried out in accordance with the SWMS, the PCBU must ensure the work is stopped immediately or as soon as it is safe to do so, resuming only in accordance with the SWMS. If a serious incident occurs and it is found that the SWMS was not properly followed, the legal consequences can be severe.
The specific requirements of a SWMS were most publicly scrutinised and called into question in the cases following the 2016 workplace tragedies at the Eagle Farm Racecourse, where two workers were crushed to death from a 14-tonne precast panel. At the time, the workers were inside a pit and undertaking the construction of a foul-watered drainage tank, which used the 14-tonne pre-case concrete panels as walls. The investigations identified significant and egregious deficiencies in the safe work procedures contained in the SWMS. These included the use of a small pipe as a makeshift brace to secure the panels and no escape route designated to exit the pit safely.
The methodology contained in the SWMS was insufficient to adhere to the strict safety obligations of the principal contractor and it was used to construct other pits before the tragic incident occurred. Adopting a one size fits all approach to high risk construction work is not only insufficient, but also dangerous. Risks and the appropriate measures need to be assessed on a case-by-case basis.
In the sentencing of Criscon Pty Ltd (the Principal Contractor), the Court emphasised that:
- the SWMS was not appropriate for the nature of the work; and
- in any event, various elements of the SWMS were not being followed by the subcontractor.
This decision is a critical reminder that principal contractors must not only set up appropriate safety procedures, including SWMS, but must also ensure those procedures are being complied with by the subcontractors and lower-tier subcontractors. Criscon was ultimately fined $625,000, sending a clear warning to all principal contractors that a failure to properly oversee safety compliance can lead to substantial penalties, and more importantly, can put workers at serious risk.
Key Takeaways
It is essential that all industry participants familiarise themselves with their WHS duties, especially Principal Contractors. The specific WHS duties that apply to the construction, development and infrastructure industries must be followed to ensure that the worksite, and inherently dangerous tasks, are safe.
Understanding the expanded duties of a Principal Contractor isn’t merely about avoiding penalties, it’s about embracing the role as the central authority for workplace safety across the entire project. The construction, development and infrastructure industries demand a commitment to safety. Safety requirements should not be viewed as regulatory hurdles simply to clear.
The responsibility to manage and control a high risk workplace involves not only checking a SWMS is in place, but actively enforcing its use by ensuring workers are following the documented safety procedures. SWMS should be more than a compliance exercise, written just to tick a box. They should be effective safety tools. Effective principal contractors don’t just confirm a SWMS exists, they ensure its procedures are understood, implemented, and followed by everyone on site.
To improve their impact, consider these key recommendations:
- Keep it clear and readable: Too many SWMS documents are lengthy, complex with small text and irrelevant details. If a SWMS is crammed with tiny text and jargon, it is useless. Workers need concise and clear information they can quickly grasp. Use plain language, and even diagrams or pictures, to make key points stand out.
- Get workers (and health and safety representatives) involved: A SWMS written from behind a desk will likely not reflect the realities of what is occurring on-site. The people doing the work know the risks best. Receiving their input is essential to ensuring the SWMS is practical and effective.
- Focus on the specific high risk construction work: A vague and generic SWMS that tries to cover everything can be a safety risk. Tailor the SWMS to target the specific high risk construction work being undertaken to ensure no risks are overlooked. The controls should clearly address the risks in a clear and logical way.
- Keep it up to date: A SWMS is not a ‘set and forget’ document. If site conditions, tasks or regulations change, review and update it. An outdated SWMS is as good as having no SWMS.
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