Workplace safety clause: the WHS duties a contractor accepts on site

Sample clause

a roof plumbing subcontract between Sandstone Build Group, a fictional principal contractor, and Northshore Roof Plumbing, a fictional subcontractor, on a three storey apartment building in Wollongong, New South Wales

11. Workplace Safety 11.1 Northshore Roof Plumbing must comply with the Work Health and Safety Act 2011 (NSW), the regulations made under it, and Sandstone's WHS Management Plan for the Project. 11.2 Before starting any high risk construction work, Northshore must give Sandstone a Safe Work Method Statement for that work and must carry out the work in accordance with it. 11.3 Northshore must ensure every worker has completed general construction induction training and Sandstone's site specific induction before starting work on Site. 11.4 Northshore must notify Sandstone immediately of any notifiable incident and within 24 hours of any other incident, injury or near miss, and must preserve an incident site where the law requires. 11.5 Sandstone may direct Northshore to stop any work Sandstone reasonably considers unsafe, and a stoppage caused by Northshore's unsafe work is at Northshore's cost. 11.6 Northshore must consult, cooperate and coordinate with Sandstone and other contractors on all safety matters.

Sample wording, not legal advice.

Variants

What to negotiate

• Flowing down the project safety system

  Principal contractors want every subcontractor bound by the project WHS management plan and site rules. Subcontractors accept that but ask to see the plan before signing and to have their own safety system recognised where it meets the same standard. The practical settlement attaches the plan to the subcontract and requires notice of any change that adds cost.

• Stop work directions

  A principal contractor needs power to stop unsafe work at once. Subcontractors accept the power but want the cost of a stoppage to depend on who caused the hazard, with an extension of time where the stoppage was caused by others or by the site itself. Clear wording on cost stops safety directions being resisted for commercial reasons.

• Incident reporting times

  Notifiable incidents must be reported to the regulator immediately by the business involved, so a contractual reporting time must never suggest waiting. Clauses commonly require immediate notice of notifiable incidents, a written report within 24 hours for other injuries and near misses, and a full investigation report within a set number of days.

• Indemnities and fines

  Principals sometimes ask to be indemnified for safety penalties. Some Australian jurisdictions, New South Wales among them, now prohibit insurance and indemnity arrangements that cover liability for WHS penalties, so such a clause may be unenforceable and can create exposure of its own. Indemnities are better confined to third party claims and costs, with each business carrying its own statutory responsibility.

The risk of leaving it out

Without a safety clause the statutory duties still apply to every business on site, but the principal contractor has no contractual right to demand a safe work method statement, stop unsafe work at the subcontractor's cost, or receive incident information on time. When something goes wrong, those gaps in coordination are exactly what the regulator examines.

Who holds which duty

Under the model Work Health and Safety Act, each person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of its workers and others affected by its work. Officers, such as company directors, must exercise due diligence. Workers must take reasonable care for their own safety and for others. On a construction project above the cost threshold, the principal contractor must prepare and maintain the WHS management plan. A business carrying out high risk construction work must have a safe work method statement before starting. Duties are shared rather than transferred, so each holder must consult and coordinate with the others.

Victoria, the UK and the US

Victoria has not adopted the model laws and applies the Occupational Health and Safety Act 2004, which places duties on employers and self employed people with a similar practical effect. In the UK, the Construction (Design and Management) Regulations 2015 allocate duties to the client, principal designer, principal contractor and contractors, with a construction phase plan at the centre. In the US, federal OSHA construction standards apply, with state plans in some states, and more than one employer on a site can be cited for the same hazard.

Where it sits in a generated document

A generated subcontract carries safety as a numbered clause with each obligation as a sub clause, so a stop work direction can cite the precise requirement breached. A safe work method statement is usually a separate document with its own work steps and sign on sheet. The generated clause does not cite the WHS Act or regulations, so the legislation named in a draft should be confirmed for the state where the work is done.

Documents that carry this clause

Safe work method statement template a site supervisor will acceptA SWMS is required before high risk construction work starts, and the one that gets accepted is the one that names the work, breaks it into steps and shows a control for every hazard with a name against it. This one is for roof sheeting on a two storey house, six steps, rated before and after controls, with the sign on table the site keeps.Subcontractor agreement template that flows the head contract downA subcontract exists to pass the head contract's obligations down one level and move the money back up on time. This one names the scope by drawing, sets the progress claim dates against the security of payment rules, holds retention and states the insurances, so the trade knows exactly when it is paid and for what.Roofing contract template with a materials table and a weather ruleA roof replacement is the one job where the house is open to the sky at the end of the day, so the clause that matters most is the one about closing it. This contract limits how much roof can be stripped at once, names every product with its warranty years, and says who pays when water gets in.Landscaping contract template with a plant schedule and an establishment periodA garden build is two jobs in one: construction that is finished when it is finished, and planting that is only finished three months later. This contract prices the construction in four stages, lists every plant with its pot size and quantity, and holds the landscaper to a 90 day establishment period for anything that dies.

Questions people ask