Work Health and Safety Laws and Duties in NSW
The legislative backbone
NSW construction work is governed by the Work Health and Safety Act 2011 (NSW) and the Work Health and Safety Regulation 2017 (NSW), supported by codes of practice. The Act sets out duties; the Regulation fills in detail such as construction induction training, high-risk work licensing and falls prevention.
The duty holders
Every question about duties turns on knowing who owes what to whom.
- PCBUs (persons conducting a business or undertaking) must ensure health and safety so far as is reasonably practicable. A principal contractor on a construction project is a PCBU with extra duties: manage WHS, prepare and display a WHS management plan, and control the site.
- Officers must exercise due diligence - understanding hazards, ensuring resources and processes, and verifying compliance.
- Workers must take reasonable care for their own and others' safety, comply with instructions and cooperate with policies.
- Other persons at the workplace (visitors, delivery drivers) must take reasonable care and comply with instructions.
Reasonably practicable
This is not a cost excuse. It weighs the likelihood and severity of harm, what the person knows, and the availability and suitability of controls, with cost only relevant if grossly disproportionate. Options are ranked in a hierarchy: eliminate the risk, then substitute, isolate, engineer, administrate, and lastly use PPE.
Traps to watch
- Duties are not transferable. A PCBU cannot contract out of WHS duties, and a worker cannot consent to unsafe work.
- Consultation is a duty, not a courtesy - and it attaches to each PCBU, not only the principal contractor.
- Multiple PCBU situations (e.g. subcontractors on one site) require each to discharge their duty so far as they can influence and control the matter, and to consult and coordinate.
- Question wording like "who is responsible?" often has an "all of the above" answer.
Rule of thumb
If a scenario describes someone with management or control of the site, treat them as owing the broadest duty; if it describes someone doing the work, treat them as a worker owing care and cooperation.