Section 26A: What Construction Businesses Must Know About Legally Binding Codes of Practice

Section 26A of the WHS Regulation 2025 fundamentally changes the legal weight of approved codes of practice in Australia. From 1 July 2026, codes of practice are no longer merely advisory guidance that a PCBU can choose to follow or ignore. They become legally binding minimum standards that must be complied with unless the duty holder can demonstrate an alternative approach that provides an equivalent or higher standard of health and safety. This shift moves codes from a persuasive evidentiary tool used in prosecutions to a direct compliance obligation. For construction businesses, this means every procedure, method statement, and site practice must either align with the relevant approved code or be supported by documented justification showing why an alternative approach meets or exceeds the code's requirements. The practical impact is significant because regulators can now issue improvement and prohibition notices solely on the basis that a code has not been followed, without needing to prove a specific risk of harm.

Construction PCBUs must be familiar with all 14 approved codes of practice that intersect with construction work. These include the Code of Practice for Construction Work, Managing the Risk of Falls at Workplaces, Scaffolds and Scaffolding Work, Demolition Work, Excavation Work, Managing Risks of Hazardous Chemicals in the Workplace, Welding Processes, Confined Spaces, Managing Noise and Preventing Hearing Loss at Work, Hazardous Manual Tasks, First Aid in the Workplace, How to Manage Work Health and Safety Risks, Managing the Work Environment and Facilities, and the Managing Psychosocial Hazards at Work code. Each code prescribes specific control measures, documentation requirements, and competency standards. Under Section 26A, a construction PCBU must review every applicable code and map its requirements against current site procedures. Where a gap exists between the code and actual practice, the business must either update its procedures to match the code or prepare a formal alternative approach document.

A structured audit is the most effective way to prepare for Section 26A compliance. Start by listing every high-risk construction work activity your business performs as defined in the WHS Regulation 2025. For each activity, identify which approved codes of practice apply and extract the specific control measures prescribed by those codes. Compare each prescribed control against your existing Safe Work Method Statements to identify gaps or deviations. Pay particular attention to fall prevention heights, excavation shoring requirements, confined space atmospheric testing frequencies, and scaffold inspection intervals, as these are common areas where site practice drifts from code requirements. Document every finding in a compliance register that records the code reference, the required control, your current practice, the gap identified, and the corrective action planned. Assign responsible persons and target dates for each corrective action. This register becomes your primary evidence of due diligence if a regulator requests proof of compliance after 1 July 2026.

Section 26A does not require blind adherence to every line of every code. It permits alternative approaches provided they achieve an equivalent or higher standard of safety. However, the burden of proof falls entirely on the PCBU. An alternative approach document must clearly identify the specific code provision being departed from, explain the technical or operational reason for the departure, describe the alternative control measures in detail, and provide evidence that these alternatives achieve equivalent protection. Evidence might include engineering assessments, manufacturer specifications, exposure monitoring data, or industry research. The document must be reviewed by a competent person, signed by a senior officer of the PCBU, and kept readily accessible for inspection. Generic statements such as our approach is just as safe are insufficient. Regulators will expect quantitative or qualitative evidence proportionate to the level of risk involved. Businesses should treat alternative approach documentation with the same rigour as an engineering change management process.

The penalties for failing to comply with a legally binding code of practice under Section 26A are severe. A body corporate faces a maximum penalty of $1.73 million for a Category 2 offence where the failure exposes a person to a risk of death or serious injury. Officers who fail to exercise due diligence face personal fines up to $345,000. Beyond financial penalties, non-compliance with a binding code creates significant insurance exposure. Insurers are already signalling that failure to follow a legally binding code may constitute a policy exclusion, meaning a construction business could find itself uninsurable for public liability and professional indemnity if it cannot demonstrate code compliance. WorkCover and icare premium calculations may also factor in code compliance audit results. The reputational damage from a prosecution citing code non-compliance can exclude a business from prequalification schemes and government tender panels. Early preparation is not optional but rather an economic and legal necessity for every construction PCBU operating in Australia.