What are a PCBU’s WHS duties in a Contractual Chain? 

8 November 2024 posted by Recovery Partners

When one PCBU’s Company engages another PCBU to carry out work for them either limited or a project they would work under a binding agreement, a Contract. A Contractual Chain is a further extension where the situation is for the same project (e.g. Office Building Construction) or work matter (e.g. supplying and installing scaffolding) to have multiple contractors and sub-contractors to deliver the project plan activities. In this blog post we will explain what a PCBU’s WHS duties in a Contractual Chain are.

An example of a Contractual Chain is the PCBU (Principal Contractor) to Contractors across building and construction to sub-contractors in building supplies and equipment. 

Figure 1: Example of a contractual chain for a road project

Reference – SafeWork Australia

Knowing where your organisation fits within the contractual chain can provide insight into what WHS duties and responsibilities apply to your PCBU.  Engaging a contractor(s) is a necessary part of many industries; however, just because the assigned tasks are subcontracted, it doesn’t mean the WHS obligations are as well. PCBU need to do all they can to protect workers and ensure they dot their ‘i’s and cross their ‘t’s when it comes to high-risk work. 

Duties under WHS Laws

PCBU has to ensure the workplace that is necessary for the worker’s engagement and under their control without risks to the worker’s health. A PCBU, including contractors, must take every reasonable action, and work proactively to ensure the health and safety in their business activities of employees, other contractors, subcontractors, apprentices, trainees and visitors. 

Under the Model WHS Act 2017 these duties are listed; 

• Eliminate risks so far as is reasonably practicable, or if this is not possible, minimise risks so far as is reasonably practicable 

• Provide and maintain a work environment that is without risk to the health and safety of workers 

• Provide adequate and accessible facilities for the welfare of workers to carry out their work, and 

• Give workers the necessary information, instruction, training or supervision to do their jobs safely and without health risks. 

The model WHS Act sets out the issues a PCBU must, at minimum, consider: 

• the likelihood of the hazard or risk occurring 

• the degree of harm from the hazard or risk 

• knowledge about ways of eliminating or minimising the hazard or risk 

• the availability and suitability of ways to eliminate or minimise the risk, and 

• The cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk. 

Shared WHS duties with another PCBU (Contractor) 

PCBUs (Contractor) who share the same WHS duties must satisfy themselves that there are safe systems of work in place that ensure worker safety and that these systems are functioning and are maintained. Some examples of shared duties are induction, consultation, Incident Notifications, Traffic Management, and ensuring the wearing of PPE e.g. HI-Vis, Safety Boots, and Hard Hats. 

Examples of Share Duties – Inductions

What should the Induction Cover? 

• Site entry, access and amenities; 

• Safety process on-site e.g. PPE, Exclusion zones, Traffic Management  

• Relevant business policies, e.g., sexual harassment policy, drug and alcohol policy, Hazardous Material Registers, Risk Register associated with site 

• Relevant safety procedures for the work they are required to undertake including lag tasks; and 

• Emergency response procedures 

• Consultation with all workers and Safety Reps  

• Toolbox and Safety Talks 

WHS consultation, cooperation and coordination 

PCBU’s must consult with workers on WHS at the workplace whether that be at a construction site warehouse or office. Consultation is a two-way process between the PCBU and the workers to identify WHS issues, share views and information, participate in decision-making on health and safety matters and receive feedback on outcomes. If workers are represented by a health and safety representative, the consultation must involve that representative. 

 Figure 2: Example of a WHS consultation, cooperation and coordination on a Project

Reference – SafeWork Australia

A PCBU’s WHS duties in a contractual chain require them to, so far as is reasonably practicable, consult with workers (and their representatives) who carry out work for them. A PCBU must consider the views of workers, not only their own but those of other PCBU’s (Contractor, Subcontractor or Sole Trader) workers (and their representatives) and advise them of the outcome of the consultation. 

Risk Management

Examples of Due Diligence Checks of Contractors 

• Assess the contractor’s ability to perform the required work safely and efficiently. 

• Review the contractor’s site safety plans. 

• Review the contractor’s safety management system. 

• Evidence of training in risk assessments. 

• Request that the contractor identifies safety issues with the work you require them to perform. 

• Review the contractor’s processes for safety induction, supervision, monitoring and risk assessment. 

• Verify the contractor’s willingness to submit to regular monitoring and supervision. 

• Evidence of discussion on Project Lagging i.e. unexpected risk identified after initial project plan sign e.g. Digging of Foundations for building and discovering asbestos-containing materials and needing to complete removal of ACM. 

Some examples of Contractor Observations 

• Take 5s Risk Assessment 

• Pre-starts – Checklist being completed 

• Delivery of Toolbox Talks  

• Compliance with SWMS – e.g. wearing correct PPE, use of plant and equipment 

• Execution of tasks – completed in a safe manner 

• Compliance with Policies & Procedures e.g. Reporting incidents, Work Permits, Sexual Harassment 

Observation of Contractor and Workers Behaviour (Some Examples) 

• Is the task being performed safely as per the SWMS, SWP or procedure? 

• Is the worker wearing the right PPE for the task? 

• Is the PPE a proper fit and used correctly? 

• Is the worker demonstrating overall competency? 

• Is the worker effectively communicating with others? 

Summary 

There does not need to be a direct contractual relationship between the Primary PCBU and the Contractors/Subcontractors workers to owe WHS duties to that worker. A PCBU’s WHS duties and responsibilities are not transferrable between other PCBUs. These WHS duties and responsibilities cannot be contracted out to another Contractor or Subcontractor. 

All Contractors (PCBUs) have shared responsibilities on the same site, project or work matter. 

Some ways to check a Contractor, Subcontractor and their workers is by; 

• Observation of Contractors or their workers e.g. unsafe behaviours, unsafe equipment   

• Review of documents e.g. Daily Pre-Start Checklist, Plant & Equipment Documents 

• Looking at the site environment e.g. Signage, Traffic Management, Overhead Line Equipment 

How Recovery Partners can help 

Recovery Partners have been delivering comprehensive safety and wellbeing services since 2004. We have a clear objective to reduce the human and financial costs of worker injuries and illnesses.

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