Part Part 6 - Work Health and Safety (Construction Work) Code of Practice 2015 - of the WHS Regulations (i.e. the Construction Work chapter) does not apply to plant unless: | Zoe
Chapter 6 of the WHS Regulations (i.e. the Construction Work chapter) does not apply to plant unless:
the plant is:
a ship or submarine
a pipe or pipeline
an underground tank
designed or used to provide support, access or containment during work in connection with construction work, for example fall prevention devices, work position systems, formwork, personnel or material hoists where these are used in connection with construction work.
work on the plant relates to work that is carried out in connection with construction work
the plant is fixed plant on which outage work or overhaul work that involves or may involve work being carried out by five or more persons conducting businesses or undertakings at any point in time.
1.4 What is ‘high risk construction work’?
Regulation 291 provides a list of construction work that is considered to be high risk for the purposes of the WHS Regulations. It is construction work for which a safe work method statement (SWMS) is required. Chapter 4 of this Code provides more detail on SWMS.
Examples of high risk construction work are provided in Appendix B.
1.5 What is a ‘construction project’?
Regulation 292: A construction project is a project that involves construction work where the cost of the construction work is $250,000 or more.
A construction project covers all the activities involved in the construction work up to the point that the construction project is handed over to the person who commissioned it. The handover usually takes place at the practical completion of the project when, for example, a house is considered habitable and the buyer or owner takes possession.
Valuing construction work
The cost of construction work can be determined by the contract price for carrying out the work. The kinds of costs that would be included are:
project management costs associated with the work
the costs of fittings and furnishings, including any refitting or refurbishing associated with the work (except where the work involves an enlargement, expansion or intensification of a current use of land)
any taxes, levies or charges (other than GST) paid or payable in connection with the work by or under any law.
The cost of the construction work would not include:
the cost of the land on which the development is to be carried out, including the civil engineering, utility and other land development cost involved in a land subdivision.
the costs associated with marketing or financing the development (including interest on any loans)
the costs associated with legal work carried out or to be carried out in connection with the development.
Principal contractor
Under the WHS Regulations, each ‘construction project’ must have a ‘principal contractor’. There can only be one principal contractor for a construction project at any one time. A principal contractor is a person conducting a business or undertaking (PCBU).
The person conducting a business or undertaking that commissions a construction project is the principal contractor, unless the person appoints another person conducting a business or undertaking to be the principal contractor and authorises the person to have management or control of the workplace and discharge the duties of the principal contractor.
A principal contractor can be a sole trader of a business or undertaking, a company or a partnership. In the case of a company, the company has the duties of the principal contractor rather than the individual managers who are employed by the company. In the case of a partnership, each partner is responsible for the duties of the principal contractor.
1.6 Other terms used in this code
Builder: This is a person conducting a business or undertaking (PCBU) that commissions the construction work and is authorised to manage, control and coordinate the construction work at the workplace. For construction projects they are referred to as the ‘principal contractor’.
Subcontractor: This is a PCBU that enters into a contract with a builder or principal contractor to undertake specified construction work. They are also ‘workers’.
Owner-builder: Generally, a person who builds their own home will have been issued with an owner-builder permit, license or certificate[2] and will be considered to be a PCBU. Owner-builders have management or control of the workplace and take on the responsibility and liability that would normally fall on the principal contractor. Owner-builders must ensure, so far as is reasonably practicable, the health and safety of any workers they engage such as electricians, plumbers and gasfitters. Building laws may also impose certain requirements.
A person is not considered to be an owner-builder or a PCBU if they:
are a home buyer, owner or occupier commissioning work on their home, or
are an individual undertaking maintenance, refurbishment or minor renovations of their own home or helping a friend.
Designer: A designer is a person conducting a business or undertaking that designs a structure that is to be used or could reasonably be expected to be used, as or at, a workplace, including during construction, maintenance, renovation or demolition of the structure.
1.7 Who has health and safety duties relating to construction work?
Everyone involved in construction work has health and safety duties when carrying out the work.
The primary duty under the WHS Act requires a person conducting a business or undertaking to ensure, so far as is reasonably practicable, that workers and other persons are not exposed to health and safety risks arising from the business or undertaking.
Multiple duties
The nature of construction work means that there are various businesses or undertakings with duties relating to construction work. It can involve a person conducting a business or undertaking who:
carries out construction work
designs the building or structure
commissions the construction work (except for a home-owner where they are not a PCBU)
is a principal contractor
has management or control of a workplace at which construction work is carried out
carries out high risk construction work.
Other duty holders that have responsibilities under the WHS Act and Regulations are:
officers (e.g. company directors)
workers, and
other persons (e.g. visitors to construction sites).
It is common in the construction industry for a person to fall into more than one duty holder category. For example, a principal contractor will have the duties of a principal contractor as well as other duties of a PCBU. A subcontractor is a PCBU and can also be a worker when working at a construction workplace.
Shared duties
More than one person can have the same duty. Where two or more people have the same duty, each person must comply with that duty, even if another duty holder has the same duty. This is, however, qualified by the extent to which:
the person has the capacity to influence and control the matter, or
would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.
This means that a person cannot contract out of their health and safety duties, but can make arrangements with other PCBUs to do the things that will meet the duties on their behalf.
For example a principal contractor and a subcontractor, as PCBUs, will have the same duty to ensure access to first aid facilities at a workplace. It may not be practical or necessary for both PCBUs to provide the first aid facilities, so they may arrange for only one of them to provide the facilities. In doing this and confirming the facilities are in place and accessible to workers, each PCBU has ‘ensured access to first aid facilities’ and therefore complied with their duty.
Determining which person or persons have the capacity to influence and control the work depends on the circumstances at the time.
Icon of housing contruction work For example at a housing construction site subcontractors have the 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 principal contractor or builder 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 confirming that risk control measures are implemented by the subcontractor.
Although a principal contractor or builder may not be present on site at all times, they must still ensure the work is being carried out safely. The principal contractor or builder should check the subcontractor’s work procedures and any SWMS (if relevant) to ensure risks associated with the work are addressed and then visit the site as necessary to verify the work is being carried out safely.
In all cases, people are expected to take reasonable care for their own safety and the safety of others.
1.8 What is required to manage risks in construction work?
Regulation 297: A person conducting a business or undertaking must manage risks associated with the carrying out of construction work.
Regulation 32–38: In order to manage risk under the WHS Regulations, a duty holder must:
identify reasonably foreseeable hazards that could give rise to the risk
eliminate the risk, so far as is reasonably practicable
if it is not reasonably practicable to eliminate the risk, minimise the risk so far as is reasonably practicable by implementing control measures
maintain the control measure so that it remains effective, and
review, and if necessary revise, control measures so as to maintain, so far as is reasonably practicable, a work environment that is without risks to health and safety.