Working at Heights: Where Safety Falls Short

Falls from height remain one of the most pressing and preventable safety risks in the construction, development and infrastructure industry. In Queensland, falls from height are consistently ranked among the leading causes of deaths and serious injuries on such projects. In 2023, SafeWork Australia reported that falls from height accounted for 31% of all construction workplace fatalities and 30% of all claims.

The causes of falls from height can always be prevented, especially as the most common causes are complacency, overconfidence and carelessness on site. This was highlighted by the 2023 SafeWork investigation, which found that 25% of the nearly 1,500 sites with work occurring on a roof had no fall protection measures in place. When principal contractors or site supervisors were asked why they were non-compliant for key checklist questions, the most common response was that “they had no excuse” (see 2020 NSW SafeWork Work at Height Construction Blitz).

This article provides a summary of the risks, the duties owed and the importance of practical work health and safety (WHS) engagement when there is a requirement to work from heights.

Who has health and safety duties in relation to falls?

Whether it’s working on a skyscraper or working just a few rungs on a ladder, working at heights carries risks, especially if they are not managed properly.

The uniform WHS legislation was prepared to address those risks, by imposing specific duties when working at heights on multiple duty holders. Those duties can be summarised as follows:

1. The person conducting a business or undertaking (PCBU): A PCBU holds a primary duty to eliminate the risk of falls in the workplace. Where that is not reasonably practicable, those risks must be minimised so far as is reasonably practicable. In effect, this primary duty is owed by all companies on a construction project: developers, head contractors, subcontractors and suppliers.

In addition to this overarching responsibility, the WHS Regulation imposes specific obligations when managing the risk of a fall by a person from one level to another. These include:

• ensuring, so far as is reasonably practicable, that any work involving the risk is carried out on the ground or on a solid construction;
• providing safe means of access to and exit from the workplace and any area from which a person could fall, such as platforms or scaffolding; and
• where it is not reasonably practicable to eliminate the risk of a fall, a PCBU must minimise the risk so far as is reasonably practicable by providing adequate protection against the risk.

This starts with fall prevention devices, including temporary work platforms, guardrails and scaffolding. If that is not reasonably practicable, moving to a work positioning system. Finally, where it is not reasonably practicable to use a fall prevention device or work positioning system, a fall arrest system should be used. This includes industrial safety nets and catch platforms.

2. Designers, manufacturers, importers and suppliers of plant, substances or structures: Designers, manufacturers, importers and suppliers must ensure, so far as is reasonably practicable, that the plant, substances or structures are without risks to health and safety.
3. Officers: Officers, such as company directors, have a duty to exercise “due diligence” to ensure that the PCBU (i.e. their company) complies with its WHS duties.
4. Workers: While at work, every worker must take reasonable care for their own health and safety and ensure that their acts or omissions do not adversely affect the health and safety of others.
5. Other persons at the workplace: Other persons at the workplace, such as visitors, must take reasonable care for their own health and safety and must take care not to adversely affect other people’s health and safety.

Under the WHS Regulation, a number of activities are classified as ‘high risk construction work’. This includes any activity that involves the risk of a person falling more than two metres.

6. A safe work method statement (SWMS) is a step-by-step procedure and policy on how to safely complete the high-risk construction works. The PCBU has a further duty to ensure a SWMS is not only prepared, but that it is implemented, communicated, updated and followed for all high risk construction work.

From SWMS to site: the disconnect fuelling fall risks

A 2023 SafeWork NSW report found that the primary causes of fall incidents were the incorrect set-up or misuse of harnesses when working on roofs, missing components when working on scaffolds, unlicenced workers altering scaffolds, using step ladders that are too small for the job and not securing ladders.

The 2023 SafeWork NSW report identified that:

1. 29% of sites “didn’t know or weren’t aware” that they were required to implement roof rails or scaffolding as a control measure for working at heights;
2. 16% of sites didn’t have written confirmation that the construction of the scaffold was complete (for example, no handover or inspection certificate, scaffolding tag);
3. 18% of sites didn’t have a SWMS available for work at heights (above 2 metres);
4. 21% of the sites with a SWMS in place didn’t follow the safe work methods for work at heights (above 2 metres); and
5. 12% of sites didn’t consult workers for work at height risks.

A further 2023-2024 SafeWork NSW report found that 25% of nearly 1,500 sites with work occurring on a roof had no fall protection measures in place at all.

An insufficient SWMS was recently condemned in the decision of SafeWork NSW v Parrish Group NSW Pty Ltd [2023] NSWDC 13, where a worker fell over six metres through inadequately supported areas of the roof. This incident occurred after the subcontractor changed the method of installing box gutters on the roof, creating gaps where sumps were to be installed. Although the new method was quicker, it required workers to work in proximity to the hazard of an inadequately supported area of the roof.

Crucially, while the defendant, a roofing contractor, did not initiate the change, it was aware of it and took no steps to create a new SWMS. The court found that this omission constituted a breach of duty, and the defendant was subsequently convicted. In his judgment, Russell SC DCJ at [59] commented on the dramatic increase in the number of falls from height matters the court had observed in the past two years and requested that SafeWork NSW send a copy of the judgement to the Minister with responsibility for workplace safety.

This case highlights several key legal risks for PCBUs when working at heights:

1. Responsibility does not end at preparing a SWMS. The PCBU must ensure the SWMS is continuously reviewed to remain relevant. Where necessary, it must be updated whenever methods change.
2. Oversight of subcontractors is a critical exposure point as responsibility for their actions can extend to the PCBU. It is important that the subcontractor charged with carrying out work at heights is as diligent as the PCBU who is accountable under the WHS Act.
3. Even if a PCBU does not directly implement unsafe changes, knowledge of the change without updating the SWMS can still result in liability.

Key Takeaways

Falls from height are one of the most serious risks on sites, yet also one of the most preventable. Time and time again, we see the same contributing factors: poor planning, procedural disconnects and a workplace culture that treats safety documents as a box-ticking exercise rather than a critical risk control.

When it comes to ensuring safety and preventing falls from height on your project, there are no short cuts or quick fixes. Preventing falls from height requires planning, meaningful collaboration and well-thought-out systems and policy preparations and implementation. This must then be followed by monitoring, reviewing and compliance confirmation.

To reduce the risk of fall-related incidents and ensure compliance with the WHS Act, consider these key recommendations:

1. Where possible, remove the hazard completely. During the design-phase of the project, designers should be looking for alternatives to working at heights. Working from the ground or on a solid construction are always the safest approaches.
2. Where it is not practical to eliminate a hazard, risks must be minimised. Control measures should be implemented such as fall prevention devices, work positioning systems or fall arrest systems (depending on what is practical in the circumstances).
3. Minimise any remaining risk by using administrative controls:
   • Review and update your WHS policies and procedures to ensure compliance with the WHS Act;
   • Engage with your workforce with respect to safety, and ensure there is open dialogue and collaboration on WHS related matters;
   • Ensure all workers are sufficiently trained and remain up-to-date on recent WHS related issues and developments. The importance of workers being equipped with clear information, instructions and training on the safe methods to be followed was emphasised in the case of SafeWork NSW v Empire Contracting Pty Ltd [2022] NSWDC 437 where a worker “did not have any qualifications, formal training, or extensive experience for working at heights” and fell 2.5m onto the concrete floor;
   • Review and continuously seek to improve your WHS consultation procedures; and
   • Conduct regular check-ins with managers, subcontractors, consultants, workers, and other people on the project, including management’s attendance at the occasional “toolbox” talk, safety briefing and pre start meeting.

Key contacts: