Safe Work Australia clarifies WHS duties in a contractual chain

The following article is a news item provided for the benefit of the Workplace Health and Safety profession. Its content does not necessarily reflect the views of the Australian Institute of Health & Safety.
Monday, 11 April, 2022 - 12:45
Policy & legislation
National News

An individual contractor or a self-employed person can be both a worker who is owed WHS duties and a person conducting a business or undertaking (PCBUs) who may owe WHS duties to themselves and to other workers, according to Safe Work Australia.

Safe Work Australia recently published a new fact sheet WHS information for PCBUs and workers who are working as part of a contractual chain – which refers to the situation where, in relation to the same project or work matter, there are multiple contractors and subcontractors.

A contractual chain is common in industries such as building and construction, road transport and events management.

There can be several levels in a contractual chain. For example, a client may engage a head contractor to deliver a logistics project.

The head contractor may engage contractors to undertake parts of the project, and these contractors may engage subcontractors to carry out particular activities that the contractor is to deliver.

In a contractual chain, there will be multiple PCBUs who share the same WHS duties, and the fact sheet said PCBUs who share duties must each discharge their duty to the extent to which they have the capacity to influence and control the matter (whether that matter is a work activity, workers or the workplace).

“The PCBU with the most influence and control over a matter will be in the best position to manage the associated risks. Determining which person or persons have the capacity to influence and control the work depends on the circumstances at the time,” the fact sheet said.

For example, at a housing construction site, subcontractors have some capacity to directly manage the risks associated with their own work and the activities of any worker they engage to carry out the work.

The head contractor will also be able to influence and control the way work is carried out, and how risks are managed, by coordinating and monitoring the work and ensuring risk control measures are implemented.

Further, PCBUs at the top of the contractual chain can build work health and safety into contractual management and take the lead in coordinating work health and safety practices down the chain.

“These PCBUs have important responsibilities in seeking assurance that systems to ensure worker safety are in place along the contractual chain and are functioning effectively,” the fact sheet said.

“For example, although a head contractor may not be present on a housing construction site, they must still ensure the work is being carried out safely.”

The head contractor should check the subcontractor’s work procedures. The principal contractor (for construction projects over $250,000) must obtain any safe work method statements (for high-risk construction work) to ensure risks associated with the proposed work are addressed, and then visit the site as necessary to verify the work is being carried out safely.

“PCBUs, regardless of their place in a contractual chain, have a duty to consult, cooperate and coordinate activities with all other PCBUs who they share a duty with, so far as is reasonably practicable,” the fact sheet said.

“This helps avoid unnecessary duplication of activities, prevent gaps in managing health and safety risks and ensure that everyone’s WHS duties are met.”