Introduction

Compliance with Occupational Health and Safety (OHS) laws in the building and construction industry in NSW is an onerous task. Not only may criminal prosecution and significant fines result from failure to comply with the law but there is a public expectation that injury and/or death should not occur on building sites. This is reflected by the highest penalties for OHS non-compliance in Australia.

It has never made more business sense to comply with OHS requirements on building and construction sites, if you have not already done so.

Requirements under the OHS Act 2000 and OHS Regulation 2001 (NSW)

The Occupational Health and Safety Act 2000 (NSW) (“the Act”) and the Occupational Health and Safety Regulation 2001 (“the Regulation”) are largely performance based with the onus squarely being placed on industry stakeholders to ensure compliance. It is incumbent upon employers to ensure the health, safety and welfare of employees and also to ensure non employees are not exposed to risk of injury.

Principal contractors and sub contractors have obvious obligations but so too do employers, owners and controllers of workplaces. Further, where responsibilities are held by more than one person, the Act requires that they discharge their responsibilities in a coordinated manner. From the conception stage of building and construction projects, sufficient resources must be allocated and management structures and systems put in place.

On a major building site, we suggest that the following steps be taken by principal contractors and sub-contractors at the stage of tender and then on-site after construction has commenced to minimise risk of OHS non-compliance: 

The Tender Stage

• A principal contractor must be formally appointed – This is particularly relevant for larger building projects because significant responsibilities flow from this role under the Act and Regulation.
• Directors/Senior management must be involved from the project design stage – the Act recognises the importance of senior management driving the compliance processes, and the need for senior management to ensure sufficient budgetary allocation of resources to ensure compliance.
• Implement an OHS management system – The system must be adaptive to a constantly changing project environment.  If the company’s OHS management system is substandard, engaging contractors will generally exacerbate potential OHS problems.  This system should include Implementation of a project management safety plan from conception stage to handover.
• Ensure OHS is priced appropriately as part of the tender process – The industry is competitive – it’s unreasonable for expectations to be placed on subbies to comply if this is not allowed for in the pricing.
• Systematic evaluation of OHS competence of contractors at tender/selection – ie. Can their management demonstrate a commitment to compliance?  What sort of training records do they have, what policies do they have in place?  In effect, the principal contractor should be evaluating the OHS management system of the sub-contractor.
• Establish an OHS pre-qualification check list/criteria to evaluate contractor performance against agreed OHS criteria – This should be monitored during the course of the project.
• Provide assistance to contractors to comply with tender requirements – ie. Ensure sufficient project specific information is provided and be proactive in assisting because this mitigates against any allegations of abrogating responsibility.  Principal contractors should ensure that sufficient projects specific health and safety information is provided in the scope of work or specifications to contractors.

Principal contractor Management of contractors on-site

Typically the principal contractor’s management of the construction process requires it to:

• Continue to implement, develop and adapt the project management health and safety plan as work proceeds and ensure the plan includes hazard identification and risk assessment at the main stage of the construction project.
•  Evaluate contractor work practises against agreed documented safe work procedures/pre-qualification checklist and ensure that there is a requirement for safe work method procedures and regular monitoring as work progresses.
•  Ensure adequate training is carried out, including site induction of all workers and develop and maintain appropriate health and safety communication between contractors on-site.  This would include measures such as making arrangements for regular safety meetings to discuss health and safety issues with contractors on-site.
•  Allow only authorised persons on-site; and
• Finally, ensure that all accidents and near misses are investigated and that follow-up procedures are enacted.

Management by contractors of OHS issues on-sites

Hazard Identification is a fundamental task which must be carried out to ensure compliance under the legislation. Hazard Identification means breaking down a trade specific work activity into a series of tasks and identifying the hazards at each stage and the associated risks. Pursuant to the legislation, risks need to be eliminated or if not reasonably practicable, controlled by the contractor.

There is often confusion about what is meant by “control” of risks. This is an obligation to control all risks to health and safety, if it is not possible to eliminate them. The legislation sets out the following measures to minimise or control risks:

Substitution – use a less hazardous process, plant or substance to do the same work in order to eliminate or reduce the potential for injury or illness.

Isolation – separate the hazard from the person put at risk – ie. physical barriers, distance or time.

Engineering – minimise the risk by using engineering controls ie. using guarding on plant.

Administration – organise safe work practices, appropriate training, instruction and supervision and ensure safe systems of work are in place.

Personal protective equipment – whilst useful, this should not be solely relied upon and should only be used as a last resort to control risks.

By implementing the abovementioned measures where relevant, your business will, as well as minimising the risk of OHS prosecution on-site, improve overall business operating systems, image and save costs associated with work related injury and illness.

John Murray