WHS Obligations for Residential Builders in the ACT

What it is

The Australian Capital Territory is a model work health and safety jurisdiction. A builder in Canberra sits under the Work Health and Safety Act 2011 (ACT) and the Work Health and Safety Regulation 2011 (ACT). WorkSafe ACT is the regulator.

Two things make the ACT different and both bite residential builders. It was the first Australian jurisdiction to create an industrial manslaughter offence, and it layers a separate occupational licensing statute over the WHS scheme. A failure on the safety side can cost you the licence.

The primary duty and officer due diligence

Section 19 places the primary duty of care on the person conducting a business or undertaking. So far as is reasonably practicable, the builder must ensure the health and safety of workers and of anyone else the work could put at risk. Subcontractors, labour hire workers, apprentices, the client and passing members of the public are all inside that duty.

Section 27 imposes a personal duty on officers. A director or anyone who makes decisions affecting a substantial part of the business must exercise due diligence: understand the hazards, keep WHS knowledge current, resource the controls and verify that the system on paper is the system on site. WorkSafe ACT has prosecuted directors alongside their companies.

Principal contractor and the $250,000 threshold

A principal contractor must be appointed for every construction project, meaning construction work valued at $250,000 or more, and there can only be one principal contractor at a time. On a standard Canberra house or a substantial extension, the head builder holds the role. Above $5 million the ACT treats the job as a major construction project and further obligations apply, which can catch a townhouse or multi-unit development.

WHS management plan and SWMS

Where the cost of the construction work is $250,000 or more, the principal contractor must prepare a written work health and safety management plan before work starts. It names who manages WHS, sets out consultation and coordination arrangements between the businesses on site, covers site security and site rules, and explains how safe work method statements are obtained, monitored and reviewed.

A safe work method statement is required for each category of high risk construction work listed in the Regulation, whatever the project is worth. Falls of more than 2 metres, energised electrical work, trenching deeper than 1.5 metres, demolition of load bearing structure, asbestos disturbance and roof work all bring the obligation with them.

Asbestos deserves a specific warning. The ACT is the only Australian jurisdiction with no unlicensed removal band. Everywhere else a person can remove 10 square metres or less of non-friable asbestos without a licence. In the ACT, removing any amount requires one.

Licensing, consultation and notifiable incidents

The Construction Occupations (Licensing) Act 2004 (ACT) requires builders, building surveyors, drainers, electricians, gasfitters and plumbers to hold a licence. A corporation or partnership must appoint a suitably licensed individual as its nominee to supervise the work. The scheme runs on a separate track from WorkSafe ACT enforcement, so one incident can generate both a WHS prosecution and a licensing action.

Consultation with workers and with the other businesses on site is a continuing duty. Notifiable incidents, meaning a death, a serious injury or illness or a dangerous incident, must be reported to WorkSafe ACT immediately and the site preserved until an inspector directs otherwise. The notification mechanics are covered in the notifiable incidents entry.

Penalties and industrial manslaughter

The Act runs the model category 1, 2 and 3 offences. Category 1 is gross negligence or reckless conduct exposing a person to a risk of death or serious injury. Category 2 is a duty failure that creates that exposure. Category 3 is a duty failure on its own.

Industrial manslaughter moved out of the Crimes Act 1900 (ACT) and into the WHS Act through the amendment passed on 5 August 2021. A conviction carries a maximum of $16,500,000 for a corporation and up to 20 years imprisonment for an individual, with no limitation period. The test is a gross deviation from the standard of care a reasonable person would exercise, so the record of what an officer knew and when they knew it is the entire defence.

What to do about it

Check the construction occupation licence and its nominee against the work you are quoting. An unlicensed build is a problem no WHS system can fix.

Prepare the WHS management plan for the specific site before the $250,000 project starts and update it when the work or the risk profile changes.

Collect a SWMS from every high risk subcontractor, read it against the site and hold it. Induct and record every worker. Minute WHS at management level, because section 27 and the industrial manslaughter provision are both argued on documents.