Subcontractors occupy a unique position under the Work Health and Safety Act 2011 because they simultaneously hold duties as a PCBU conducting their own business or undertaking and, in many cases, duties as a worker carrying out work for another PCBU. This dual status means the subcontractor must comply with the primary duty of care under section 19 for their own workers and any persons affected by their work, while also complying with the reasonable instructions of the principal contractor or head contractor under whose management they operate. The WHS Regulation 2025 reinforces this dual obligation by requiring subcontractors to prepare their own safe work method statements for high-risk construction work, maintain their own training and competency records, and participate in prequalification processes that verify their WHS capability before they are engaged on a project.
s.28 WHS Act 2011
Worker Duty
s.19 WHS Act 2011
PCBU Duty
s.291 WHS Regulation 2025
SWMS Requirement
1 July 2026
Section 26A Commencement
1 December 2026
WEL Transition Date
Industry standard requirement
Prequalification
A subcontractor who is an individual sole trader holds duties as both a worker under section 28 and a PCBU under section 19 of the WHS Act 2011. As a worker, the subcontractor must take reasonable care for their own health and safety, take reasonable care that their acts or omissions do not adversely affect the health and safety of other persons, and comply with any reasonable instruction given by the PCBU. As a PCBU, the subcontractor must ensure so far as is reasonably practicable the health and safety of workers they engage, including any labourers, apprentices, or further subcontractors. A subcontractor company that employs workers holds the full PCBU duty to those workers, including obligations around training, supervision, provision of personal protective equipment, and health monitoring where required by the WHS Regulation 2025. The dual duty structure means a subcontractor can be prosecuted both for failing to follow the principal contractor's site rules and for failing to manage hazards within their own scope of work independently.
Subcontractors performing high-risk construction work as defined in section 291 of the WHS Regulation 2025 must prepare their own safe work method statements before commencing work. The subcontractor's SWMS must be specific to the work they will perform on the particular site, not a generic template reused across projects. The SWMS must identify the high-risk construction work to be carried out, the hazards relating to that work, the risks to health and safety associated with those hazards, the control measures to be implemented, and how those controls will be put in place. The subcontractor must provide the SWMS to the principal contractor for review before work commences. Workers performing the work must sign the SWMS, confirming they have been consulted and understand the content. Under Section 26A, which takes effect 1 July 2026, the subcontractor's SWMS must align with the applicable binding codes of practice for the relevant work category. Failure to have an adequate SWMS in place before commencing high-risk construction work is a strict liability offence.
The WHS Regulation 2025 and industry practice require subcontractors to undergo prequalification assessment before being engaged on construction projects. While the specific prequalification requirements vary by principal contractor and project, the common elements include evidence of a current WHS management system or documented WHS procedures, copies of all relevant licences and certificates of competency held by workers, a record of notifiable incidents in the preceding three years, evidence of workers compensation insurance, public liability insurance, and any required professional indemnity cover, and references from previous principal contractors. Subcontractors must also demonstrate that they have the competency and resources to prepare site-specific SWMS, conduct task-specific risk assessments, and provide adequate supervision for the workers they engage. The prequalification process is increasingly formalised, with many principal contractors requiring subcontractors to maintain current profiles on third-party prequalification platforms. Subcontractors who cannot demonstrate an adequate WHS management capability will be excluded from tendering on projects, making prequalification a commercial necessity as well as a legal obligation.
Subcontractors are among the most frequently prosecuted duty holders under the WHS Act 2011. Common failures include using generic SWMS that do not reflect site-specific conditions, allowing unlicensed workers to perform licensed work such as operating forklifts or performing electrical work, failing to implement controls described in their own SWMS, and failing to comply with the principal contractor's site rules and WHS management plan. In SafeWork NSW v Platinum Electrical Services Pty Ltd (2023), a subcontractor was prosecuted after an apprentice suffered severe electrical burns. The subcontractor had provided a SWMS to the principal contractor but had not ensured the apprentice was adequately supervised or that the isolation procedures in the SWMS were followed. The penalty exceeded $350,000. Subcontractors must understand that providing a SWMS does not discharge their duty. They must implement, monitor, and enforce the controls described in the document throughout the duration of the work. The WHS Regulation 2025 increases penalties for category 2 offences, meaning subcontractors face higher financial exposure for non-compliance.
EHS Atlas helps subcontractors build site-specific SWMS, manage prequalification documents, and maintain compliance records that satisfy principal contractor requirements.
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