New Victorian OHS Regulations for construction work

By Nicholas Tsirogiannis and Rebecca Hayward.

Key Points:
The new Regulations impose obligations specific to employers in the construction industry and introduces the concept of "principal contractor" to Victorian construction projects.

New regulations were made under the Occupational Health and Safety Act 2004 (Vic) in June 2007. Subject to some exceptions, those regulations, known as the Occupational Health and Safety Regulations 2007, came into force on 1 July 2007.

The key changes introduced by the Regulations include:

• restructured licensing arrangements for high risk work
• increased penalties for breaches of the Regulations
• consultation requirements in respect of health and safety representatives; and
• a shift in emphasis to controlling hazards and risks (rather than identification and assessment).

The Regulations also introduced a new "Construction Part" which comes into operation on 1 July 2008. The Construction Part is dedicated to the regulation and control of construction risks and hazards at workplaces where "construction work" is performed. "Construction work" is defined broadly as any work performed in connection with the construction, alteration, conversion, fitting out, commissioning, renovation, refurbishment, decommissioning or demolition of any building or structure, or any similar activity.

The Construction Part imposes a number of obligations specific to employers in the construction industry and introduces the concept of "principal contractor" to Victorian construction projects. In addition to introducing new requirements, the Regulations largely consolidate the existing obligations under Victoria’s previous 13 OHS regulations.

Obligations under the new Construction Part

The Construction Part introduces the following requirements in relation to construction work:

Eliminating and controlling risk

Employers are required to, as far as possible, identify all hazards and eliminate any risk to health or safety associated with construction work. If it is not reasonably practicable to eliminate the risk, employers must undertake certain prescribed steps aimed at reducing the risk.

High risk construction and Safe Work Method Statements

An employer undertaking "high risk construction work" must prepare and implement a safe work method statement ("SWMS"), before any high risk construction work begins if there is a risk to the health or safety of any person arising from that work. "High risk construction work" means construction work involving activities such as where there is a risk of a person falling more than two metres, demolition, the removal or likely disturbance of asbestos, structural alterations that require temporary support to prevent collapse, work involving tilt up or precast concrete, work near pressurised gas mains or piping and work on or adjacent to operational roads or railways.

The SWMS must provide for the identification and control of hazards and risks to health and safety associated with the relevant high risk construction work. Employers are obliged to ensure high risk construction work is carried out in accordance with the SWMS and are required to review (and where necessary revise) the SWMS if circumstances change.

Registration and training requirements

Employers must ensure that construction induction training is provided by a Registered Training Organisation to a person it employs to perform construction work prior to that person undertaking construction work.

Employers must also ensure that only persons that are registered under the Regulations perform construction work. The Regulations impose penalties for failing to do so.

Requirement for visitors to be accompanied on site

The Regulations require all visitors who have not had construction induction training to be accompanied at all times by a person who has received construction induction training.

Notification of excavation works

Subject to certain exceptions, employers are required to notify WorkSafe in writing of an intention to excavate a shaft or trench or any tunnel at least three days before the work starts.

Duties of principal contractors

The Regulations introduce the role of the "principal contractor" on construction projects with a value of $250,000 or more. The Regulations provide that the principal contractor is the "owner" unless the owner appoints another in this role and authorises them to manage or control the workplace to the extent necessary to discharge the duties imposed on principal contractors under the Regulations. Unlike equivalent provisions in other jurisdictions, the term "owner" is not defined in the Regulations.

The duties imposed on principal contractors under the Construction Part include an obligation to:

• post signage outside the workplace, showing the principal contractor’s name and phone number; and
• prior to the commencement of construction work, prepare a health and safety co-ordination plan, keep it up to date and make it available for inspection.

A health and safety co-ordination plan must:

• list the names, positions and responsibilities of the personnel responsible for OHS
• detail arrangements about OHS coordination (such as meetings or bulletins)
• provide information on OHS incident management; and
• contain site specific OHS rules.

Transitional provisions

The Regulations also provide that the role of "principal contractor" and the duties that attach to that role ("Principal Contractor Provisions") do not apply to a construction project if the contract to perform the construction work was entered into prior to 1 July 2008.

What is not clear, however, is whether the "contract to perform the construction work" is a reference to the head contract or a reference to any contract in connection with that work including a subcontract. If it is the latter, then the Principal Contractor Provisions may apply to a project regardless of when the head contract was entered into.

While a court may give this reference the more narrow interpretation, owners should nevertheless protect their position by ensuring that their head contracts provide for the appointment of a principal contractor even where that contract is entered into before 1 July 2008.

Impact of the Regulations

Owners and contractors alike should give careful consideration to the impact of the Regulations and, in particular, the Construction Part on their business practices within Victoria.

Before entering into any arrangements with any contractors for construction work on a project, owners should consider whether they will appoint one of those contractors as the principal contractor for the purposes of the Regulations.

If an owner decides to make such an appointment, it should be made before any construction work commences on the project and ideally be included in the contract documentation under which the relevant construction work is awarded to the contractor appointed as the principal contractor. Owners must also ensure that they provide the principal contractor with the authority required to manage and control the workplace where the construction work is being carried out.

Contractors should be aware of the extent of the new obligations and sanctions for non-compliance and ensure that they have in place the procedures and resources required to discharge those obligations. In particular, contractors should be aware of the duties associated with being appointed as the principal contractor on a project and ensure that any subcontracts contain relevant back to back indemnities and provisions requiring compliance with health and safety co-ordination plans.

For further information, please contact Nicholas Tsirogiannis.