Are Contractors Responsible for Their Own Safety Under WHS Law?
- OHS News
- May 25
- 6 min read
When you bring a contractor or subbie onto a job, it's easy to assume their safety is their problem. They're licensed, they're insured, they sort themselves out. It's one of the most common beliefs in small business, and it's one of the most expensive ones to get wrong.
Here's what actually matters. Under Australian WHS law, you don't hand over your safety duty when you hire someone else to do the work. The duty stays with you. So the honest answer to the question in the title is: yes, contractors are responsible for their own safety, but that doesn't cancel out your responsibility. You both hold a duty at the same time.
This guide explains how that works, what you can actually be held to, and the three practical things to put in place before your next contractor starts.
You can't contract out of a WHS duty
The starting point is a single principle written into the law. Under the model WHS Act, a duty owed by a person conducting a business or undertaking (a PCBU, which covers sole traders, partnerships and companies of any size) cannot be transferred to another person.
You can't sign it away, delegate it away, or hire it away.
So when you engage a contractor, you don't swap your duty for theirs. The contractor picks up their own duties as a PCBU in their own right. You keep yours. Two businesses, two duties, same job.
This catches people out because it feels backwards. You're paying someone else to do the work, often precisely because they're the expert. Surely that makes it their call? On the technical side of the work, often yes. On the safety side, the law doesn't let you step away entirely.
What "overlapping duties" actually means
When more than one business is involved in the same work, each one holds a WHS duty in relation to that work. The law calls these overlapping or shared duties.
You're not responsible for everything the contractor does. You're responsible for safety to the extent that you can influence and control it. That's the test, and it's worth sitting with for a moment, because it's where the real obligation lives.
Think about what you actually control when you bring someone on site. You choose who gets the job. You decide what work they do and when. You control the site they're working in, the other trades around them, and the conditions they turn up to. You can ask for their safe work documents before they start. All of that is influence and control, which means all of that sits inside your duty.
A useful way to picture it: a builder engages an electrician to wire a new extension. The electrician controls how they do the electrical work safely, that's their expertise. The builder controls the site, the sequencing of trades, and whether the power is isolated when the electrician needs it to be. If the builder leaves a live board exposed and the electrician is hurt, "they look after their own safety" won't hold up. The builder had influence and control over that hazard.
The duty to consult, cooperate and coordinate
There's a specific obligation that goes hand in hand with shared duties, and it's one a lot of small businesses have never heard of.
Where more than one business has a duty for the same work, each must, so far as is reasonably practicable, consult, cooperate and coordinate with the others. In plain English: you have to talk to each other, share what you know, and work out who is doing what so nothing falls through the gap between you.
This isn't bureaucracy for its own sake. Most contractor incidents happen in exactly those gaps, the bit where each party assumed the other one had it covered. A short conversation before the job about hazards, emergency procedures and who controls what does more to prevent injuries than any amount of paperwork filed afterwards.
What's reasonably practicable here depends on the job. Two tradies working side by side might just talk it through on the day. A larger site with several contractors might need a written agreement and a coordination meeting. The principle is the same; the formality scales with the complexity.
"But they're insured and licensed"
This is the objection that comes up every time, so it's worth addressing head on.
Insurance and licensing are good and necessary. A contractor's public liability cover and their trade licence tell you they're a legitimate operator. What they don't do is discharge your WHS duty. Insurance pays out after something goes wrong. A licence says someone is qualified to do the work. Neither one is evidence that you managed the safety risks you had influence and control over.
A regulator investigating an incident isn't going to be satisfied by a certificate of currency. They'll ask what you did to manage the risk before the job started, during the job, and whether you coordinated with the other duty holders. If your answer is "I assumed the contractor had it sorted," that's not a defence. It's the gap they're looking for.
What it can cost
The reason this matters beyond principle is the exposure. If a business fails to comply with its WHS duty and that failure exposes someone to a risk of death or serious injury, the maximum penalty under the model WHS Act is $2.373 million for a body corporate (the amount as at the 1 July 2025 indexation). The most serious category of offence, involving reckless conduct, runs much higher again.
Those headline figures are the worst case, and most matters don't reach them. The more common cost is the everyday version: a contractor hurt on your job, a workers' compensation claim, lost time, and a regulator asking what you had in place. For a small business, that disruption alone can be enough to do real damage.
Three things you actually need to do
Here's the short version of how to meet your duty without turning it into a second job.
Pre-qualify before they start. Before a contractor sets foot on site, check they have the right licences, insurance and safe work documents for the job they're doing. For higher-risk work, that means looking at their SWMS, not just taking their word for it. Keep a record of what you checked and when. If you ever need to show you did your homework, that record is the proof.
Induct them like anyone else. Contractors and visitors need to know your site hazards, your emergency procedures, and how to report a problem, the same as your own workers. A site induction and a signed attendance record show you informed them. It doesn't need to be long. It needs to be done and documented.
Coordinate and keep an eye on the work. This is the consult, cooperate and coordinate duty in practice. Agree up front who controls which risks. Talk about how the work interacts with everything else happening on site. Then actually check the work is being done the way you agreed. Monitoring isn't micromanaging the trade; it's confirming the safety arrangements you set up are holding.
How this connects to your WHS Management System
Every one of those three steps is easier when it's built into a system rather than reinvented for each job. A documented contractor and subcontractor management procedure gives you a consistent way to pre-qualify, a standard induction, an attendance record, and a clear record trail for every contractor who works for you.
That's exactly what a WHS Management System is for. It turns "we usually check" into "here's the process, here's the form, here's the evidence." When a tender asks how you manage contractors, or a regulator asks what you had in place, you have a straight answer instead of a scramble.
Free resources to help you get started
To make the first step simple, we're giving away a free Contractor/Visitor Attendance Record. Use it to log who's on your site, when they arrived, and that they've been inducted. It's a small habit that starts building the evidence trail you'd want if anything ever went wrong:
And if you don't yet have a documented contractor and subcontractor management procedure, that's worth sorting before your next job rather than after your next incident.
Everything OHS has helped more than 12,000 Australian businesses put the right documentation in place, including manual handling procedures, risk assessments, toolbox talks, and induction materials. Our documents are built by WHS specialists and are aligned to Australian regulations. One-off purchase, no subscription, and available to download and use immediately.
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*This article provides general WHS guidance for Australian small businesses. It is not legal advice. For advice specific to your situation, consult a WHS professional or your state/territory regulator.
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