Recently it was reported that a Principal Contractor, Seascape Constructions, was convicted and fine $850K for
1 – failing to ensure the safety of persons other than it’s employee’s from risks arising from its undertaking when a contractor fell from a second floor and was killed and
2 – failing to issue SWMS to contractors installing flooring at height.
On the advice of their lawyer Seascape pleaded guilty. Here are the problems –
Charge 1 – Seascape were charged under section 23 of the OHS Act which provides that employers must ensure the health and safety of “others” who may be impacted by their undertaking. Section 23 does not apply to contractors as they are deemed workers, not “others” See SafeWork NSW v Rawson Homes Pty Ltd  NSWDC 237. So it appears that the s 23 charge may be incorrect.
Charge 2 – failing to provide SWMS to contractors installing flooring on the second floor. Yes Seascape needed to prepare a SWMS to manage work at heights across the site but it was NOT responsible for instructing contractors in how to install flooring. Yes it is important to be clear on who is managing what.
An appeal is expected. Note: Please make sure you get advice from experts……