Subcontractor WHS Obligations in NSW — What the Law Requires

Subcontractors are PCBUs with the same primary duty of care as any employer. The WHS Act does not distinguish between a company with 500 workers and a subcontractor with 3.

You ARE a PCBU

Under WHS Act 2011 s.5, a person conducting a business or undertaking includes subcontractors. Section 19 imposes the primary duty of care on every PCBU. The Code of Practice: Construction Work (2019) states explicitly: "Subcontractors must comply with both the duties of workers and of PCBUs. Self-employed PCBUs are also workers for their own business or undertaking." This means subcontractors carry dual obligations — as a PCBU responsible for the safety of their workers and others affected by their work, and as workers themselves when performing hands-on tasks. The legal framework does not provide a lower standard of care for smaller businesses. The scope of what is "reasonably practicable" considers the size and resources of the business, but the duty itself is identical.

WHS Act 2011 s.5, s.19

Duty to workers AND others

Section 19 of the WHS Act extends the primary duty of care beyond your own employees. A subcontractor PCBU must ensure, so far as is reasonably practicable, the health and safety of workers who carry out work for them, and that the health and safety of other persons is not put at risk from work carried out as part of the business or undertaking. "Other persons" includes workers of other subcontractors on the same site, the principal contractor's workers, visitors to the site, and members of the public who may be affected by the work. A subcontractor who creates dust, noise, or fumes that affect workers from another trade on the same site has breached their duty to "other persons" if they have not taken reasonably practicable steps to control the risk.

WHS Act 2011 s.19

Consultation obligations

Sections 46 to 49 of the WHS Act require PCBUs to consult, cooperate, and coordinate with other duty holders who share a duty in relation to the same matter. For subcontractors, this means consulting with the principal contractor on WHS matters that affect both parties, consulting with your own workers on WHS matters that affect them, and cooperating and coordinating your activities with other subcontractors on site. Consultation is not optional and it is not a formality. A PCBU must share information about hazards, consult on how risks should be managed, and make a reasonable effort to achieve agreement. The principal contractor typically coordinates this process, but the subcontractor has an independent obligation to participate.

WHS Act 2011 s.46-49

SWMS obligations

WHS Regulation 2025 s.299 to s.302 require a PCBU performing high-risk construction work to prepare a SWMS before commencing that work. The SWMS must be provided to the principal contractor, and the work must be carried out in accordance with the SWMS. A subcontractor cannot rely on the principal contractor's SWMS for their own work — this was confirmed in the Diona v SafeWork NSW case (November 2024), which clarified that while a principal contractor's SWMS may address site-level risks, the subcontractor performing the specific work must have their own SWMS addressing the hazards and controls relevant to their work. If conditions change during the work, the SWMS must be revised before the changed work commences (s.302).

WHS Regulation 2025 s.299-302

Incident notification

Under s.38 of the WHS Act, a subcontractor who becomes aware of a notifiable incident at a workplace must ensure the regulator is notified immediately. Notifiable incidents include death, serious injury or illness, and dangerous incidents as defined in the Act. Section 39 requires that the site of a notifiable incident is not disturbed until an inspector arrives or directs otherwise. For subcontractors working on a principal contractor's site, the practical requirement is to notify the principal contractor immediately and ensure the site is preserved. The subcontractor's own obligation to the regulator exists independently of the principal contractor's notification.

WHS Act 2011 s.38-39

Right to refuse unsafe work

Section 84 of the WHS Act gives workers the right to cease or refuse to carry out work if they have a reasonable concern that carrying out the work would expose them to a serious risk to their health or safety, arising from an immediate or imminent exposure to a hazard. Subcontractors who are also workers (which includes self-employed subcontractors performing hands-on work) have this right. A principal contractor who penalises a subcontractor for exercising this right is committing a prohibited action under the WHS Act. The right to refuse unsafe work is not a negotiable term of the subcontract — it is a statutory right that overrides contractual obligations.

WHS Act 2011 s.84

Penalties

Subcontractors face the same penalty structure as any PCBU. For individuals (including sole traders and officers), Category 3 penalties reach approximately $74,800, Category 2 penalties reach approximately $223,000, and Category 1 penalties reach approximately $1,183,000 plus up to 10 years imprisonment (at 2025-26 penalty unit values of $123.31). All WHS fines in NSW have been uninsurable since 10 June 2020 under s.272A. Industrial manslaughter, introduced in NSW in 2024, carries maximum penalties of $20 million for a body corporate and 25 years imprisonment for an individual. These penalties apply equally to subcontractors as to any other PCBU.

WHS Act 2011, Penalties Schedule; WHS Act 2011 s.272A

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