KEYWORDS: PRINCIPAL CONTRACTOR; MAIN CONTRACTOR; OHS

KEY TAKEAWAY

In all States and Territories other than Western Australia, safety legislation allows for the appointment of a "principal contractor". The principal usually appoints the head contractor as principal contractor under their contract.

In WA, however, the equivalent duty holder — the "main contractor" — cannot be appointed and instead is the person or company that falls within a legislative definition. That can change depending on the circumstances at a particular construction site at a particular time.

In other words, a principal may be the main contractor and not even know it.

How can you be the main contractor in WA?

When two or more contractors are performing "construction work" at a particular construction site at the same time, by default the person for "whose direct benefit all the work done at the site exists upon completion" becomes the "main contractor".1 Often, that will be the principal.

Importantly, it is immaterial whether the principal in that situation has appointed a contractor as the "main contractor". (This is common in contracts used by companies familiar with other States' safety legislation, particularly those with a national presence.)

In WA, the parameters of the legislation can also be interpreted very broadly. For example:

  • As defined, "construction work" can include maintenance and repair work.
  • The contractors on site do not have to be performing related work or even know that the other is on the site.

The principal can be the main contractor even if it does not have any personnel on site.

What does it mean if you are the main contractor in WA?

Once a principal is deemed by the legislation to be the "main contractor", several duties and obligations are imposed by the WA safety legislation. Some of these duties are shared (for example, between the principal and the person in control of the site) and some specifically apply to the main contractor. While these duties are not always onerous, a failure to comply with them is a breach of the OSH regulations and can result in a financial penalty.2

However, if there is a safety incident (particularly one involving serious injury or death), a breach of a "main contractor" obligation may be compelling evidence of the breach of one of the broader safety duties under the Act. Breach of these can attract a much higher monetary penalty: up to $500,000 for a first offence and $625,000 for subsequent offences.

What can you do to manage these risks?

For parties who are at risk of being the "main contractor", there are several ways to position themselves to meet the obligations imposed on a main contractor and mitigate any risk of potential liability. Naturally, the option best suited for a particular company will depend on the work involved.

Footnotes

1 Definition of "main contractor" under the Occupational Safety and Health Regulations 1996 (WA), rule 1.3
2 The maximum financial penalty for a first offence is $50,000 and $62,000 for subsequent offences

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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