Obligations and penalties for property developers, builders and owners under the national WH&S scheme

March, 2013

1. What is the extent of your workplace health and safety (WH&S) responsibility and liability during construction, fit out and ownership or occupation of buildings and building sites?

2. How can you mitigate liability?

Regulatory Framework

1. The Workplace Health & Safety Model Act harmonising WH&S laws nationally has significant implications for property developers, builders and building owners.

2. It is no longer sufficient to pass on obligations for WH&S to contractors or other third parties.

3. The Model Act imposes broader non-delegable duties upon property developers, builders and owners than previous legislation.

Issues

1. The Model Act imposes duties on developers, builders and owners and individuals that carry significant penalties if not complied with.  These penalties range up to fines of $3,000,000 for the organisation and $600,000 and imprisonment for 5 years for individuals.

2. Developers, builders and owners are under a general duty to ensure, so far as is reasonably practicable, the health and safety of both workers engaged (and caused to be engaged) by them, as well as workers whose activities in carrying out work are influenced by them.

3. Developers, builders and owners are also under a duty to ensure that, so far as is reasonably practicable, the workplace, the means of entering and exiting the workplace, and anything arising from the workplace, are without risks to the health and safety of any person.  Significantly, officers are under a duty to exercise due diligence in order to ensure that the organisation complies with its OH&S duties.

4. Developers, builders and owners cannot limit or avoid these obligations by reducing the amount of control they have over construction operations although they can mitigate any potential liability.

5. Developers, builders and owners should review their WH&S compliance program to properly reflect the expanded obligations under the Model Laws.  This applies to the construction and commissioning of buildings in the first place, but equally applies to operations once the building has been completed.

Contact Mills Oakley

For further information or to discuss having your employment arrangements reviewed, please contact:

Adam-lunn-mills-oakley

Adam Lunn | Partner
T: +61 3 9670 9111
E: alunn@millsoakley.com.au

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