On 7 June 2018 an amendment to the ACT Work Health and Safety Act 2011 (ACT) was tabled in the ACT Legislative Assembly.
If the amendment passes the assembly, it will come into force on 1 January 2019, and will create three new strict liability offences:
- It will be an offence for a principal contractor not to consult with each eligible union for the project about matters relevant to the formation of a work group;
- It will be an offence for a principal contractor to not provide training to a Health and Safety Representative (HSR) in accordance with a course and costs decided by an inspector; and
- It will be an offence for a principal contractor to not provide training to a Health and Safety Committee (HSC) member in accordance with a course and costs decided by an inspector.
Who do these amendments cover?
These amendments apply only to “major construction projects”, defined as those with a contract price of $5 million or more (excluding single dwelling residential).
The “contract price” is defined as the initial contract price, and does not include variations that may happen after the project commences.
Only the “principal contractor,” being the person conducting a business or undertaking (a PCBU) that commissions the project, is at risk of committing an offence. However, if the principal contractor engages another PCBU and authorises that PCBU to have management or control of the workplace and to discharge the duties of a principal contractor, that subcontracted PCBU will become the (and the only) principal contractor for the project. There will be only one principal contractor at any time.
What are the obligations?
Consult with unions
A principal contractor must consult with each eligible union for the project about:
- The number and composition of work groups to be represented by HSRs on a major construction project; and
- The number of HSRs and deputy HSRs (if any) to be elected.
An eligible union is defined as a registered employee association that is eligible to represent the industrial interests of one or more workers carrying out work in connection with the project.
The principal contractor must give each eligible union written notice of the major construction project and the requirement to consult. The notice in writing must include a statement that if the eligible union wants to participate in the consultation, the union must respond, in writing, to the notice not later than 14 days after receiving the notice.
A failure to consult will attract a penalty of up to $50,000 for a body corporate or $10,000 for an individual.
Facilitate the election of Health & Safety Representatives and formation of a Health & Safety Committee
A principal contractor for the major construction project must, when work starts on the project:
- facilitate an election for one or more HSRs to represent workers;
- facilitate the formation of a HSC; and,
- take all reasonable steps to commence negotiations with workers for agreement on a HSC. At least half of the members on the HSC must be workers carrying out work on the project.
The phrase “when work starts” is not defined, and the Bill does not make it clear how long principal contractors have to take these steps after works commence.
Train Health & Safety Representatives and form a Health & Safety Committee
The principal contractor must ensure the members of the HSC and any HSRs attend a course of training in work health and safety that is approved by the regulator, within 3 months of work commencing onsite. The HSC members and HSR must be provided with paid time off to attend the training, and the principal contractor must pay the course fees and any additional expenses associated with attending the training.
A failure to facilitate this training will incur a penalty of up to $50,000 for a body corporate or $10,000 for an individual.
What should you be doing?
The obligations proposed to be imposed on principal contractors under this legislation are onerous and vague. If you have concerns about the amendments we recommend that you write to your local Member well in advance of the next sitting date, being 31 July 2018.
If the legislation does pass we recommend that:
- Your construction contracts be reviewed to include provisions about who the principal contractor will be
- Work Health and Safety Policies be put in place or reviewed to include procedures for the election of HSRs and formation of HSCs
- Pro forma letters to eligible unions be drafted and reviewed by a Work Health and Safety lawyer