WHS Obligations for Residential Builders in Western Australia

What it is

Western Australia is a work health and safety jurisdiction. The Work Health and Safety Act 2020 (WA) and the Work Health and Safety (General) Regulations 2022 commenced on 31 March 2022 and replaced the Occupational Safety and Health Act 1984. Anyone still running a WA site off an OSH Act system is working from repealed law.

The regulator is WorkSafe WA, supported by inspectors from the Department of Energy, Mines, Industry Regulation and Safety. WA is largely harmonised with the model WHS laws, but not identically. The difference that matters most to a residential builder sits in Chapter 6.

The PCBU duty and officer due diligence

A PCBU must ensure, so far as is reasonably practicable, the health and safety of its workers and of anyone else put at risk by its work. That is the primary duty in sections 19 to 21 and it does not depend on the size of the job. A builder is a PCBU. So is every subcontractor on site. The duties overlap rather than transfer, and you cannot contract out of one.

Section 27 puts a personal duty on officers. A director, and anyone else who takes part in decisions affecting a substantial part of the business, must exercise due diligence to ensure the PCBU complies. That means current WHS knowledge, appropriate resources and processes, and verification that they are actually used. A director who never asks to see a SWMS is not exercising due diligence.

When you become the principal contractor

This is where WA diverges from every other jurisdiction, and where builders get it wrong.

There is no dollar threshold in WA. Regulation 292 defines a construction project as a project involving construction work where five or more persons are, or are likely to be, working at the same time. NSW, QLD, TAS, ACT and NT use a $250,000 project value. South Australia uses $450,000. WA counts heads.

That flips the risk. A modest renovation becomes a construction project the moment the chippies, the sparky, the plumber, the labourer and the supervisor are on site together. A high-value custom home with a small crew working in sequence may never be one.

Under regulation 293, every construction project must have a principal contractor, and only one at a time. The PCBU that commissions the project is the principal contractor unless it engages another PCBU to take the role.

The WHS management plan

The principal contractor must prepare a written WHS management plan before construction work commences. It must cover who holds WHS responsibilities, the consultation and coordination arrangements between the PCBUs on site, site-specific safety rules and how SWMS will be collected, assessed, monitored and reviewed.

• Everyone who will carry out construction work must be made aware of its content and their right to inspect it before they start.
• It must be reviewed and revised to stay current, and workers must be told about any revision.
• A copy must be kept until the project is completed, or for at least two years after a notifiable incident connected with the project.

The principal contractor must also fix a sign to the site complying with regulation 21 of the Building Services (Registration) Regulations 2011.

SWMS and consultation

Regulation 291 sets the list of high risk construction work. A SWMS is required for that work whether or not the job is a construction project with a principal contractor. The categories that bite hardest in residential work are a fall risk of more than two metres, energised electrical work, work likely to disturb asbestos, structural alterations needing temporary support, trenches deeper than 1.5 metres, confined spaces and precast or tilt-up concrete.

A principal contractor must take all reasonable steps to obtain the SWMS before the high risk work starts. Part 5 of the WHS Act separately requires a PCBU to consult with its workers, and to consult, co-operate and co-ordinate with the other PCBUs sharing the duty.

Penalties

The WHS Act 2020 has four offence tiers. Industrial manslaughter applies where a duty holder knew their conduct was likely to cause death or serious harm and acted in disregard of that likelihood. Only PCBUs and their officers can be charged, and only the Director of Public Prosecutions can bring the charge. The maximum is 10 million dollars for a body corporate, and 20 years imprisonment plus a fine of up to 5 million dollars for an individual.

Below that sit categories 1, 2 and 3. Category 1 covers conduct that caused death or serious harm and carries up to 3.5 million dollars for a body corporate.

What to do about it

Count the people, not the contract value. Before each job, work out whether five or more people will be on site at the same time. If they will, you have a construction project, a principal contractor and a written WHS management plan due before anyone starts. Collect the SWMS before the high risk work begins and put the required sign on the fence.