Hampton & Associates Level 7/96 York Street Sydney NSW 2000 Phone: (02) 9835 6754 Fax:

(02) 9835 6755 E-Mail: info@hampton.com.au Web: www.hampton.com.au

30th September, 2013 Ms Joan Roundtree 15 Goulbourne Rd Goulburn NSW 2580 Dear Ms Roundtree, RE: Advice Regarding The Authority Thank you for your letter sent 17 January, 2014, in which you requested legal advice on the Authoritys position under the work health and safety laws. Your questions and our answer to those questions are set out below. QUESTIONS AND ANSWERS Q1. Will the Authority be classified as the person with management or control of the construction site once the work commences?

Yes, determined objectively1 the Authority will be classified as a person with management or control. As a result, they will have a duty to ensure the construction site of the railway is without risks to the health and safety of any person.2 The Authority is a signatory to the Design and Construction Agreement, giving them legal power to compel corrective action at the workplace3 and to issue health and safety directives to RailLink employees under Clause 6 of the Agreement.4 Even if the Authority does not exercise actual control in the construction site once the work commences, the contractual agreement gives rise to a legal right of control as it allows the Authority to compel RailLink to conduct work in a particular way.5

1 Inspector Page v Woolworths Limited & Anor [1994] NSWIRComm 207. 2 Work Health and Safety Act 2011 (NSW) s 20. 3 Inspector Michael Dall v Brambles Australia Limited [2006] NSWIRComm 213. 4 WorkCover Authority (NSW) (Inspector Mansell) v Ove Arup Pty Ltd [2006] NSWIRComm 240. 5 WorkCover Authority (NSW) (Inspector Mansell) v Ove Arup Pty Ltd [2006] NSWIRComm 240.

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Who will be the principal contractor of the construction work while it is being carried out? The Authority does not want to be the principal contractor and the Agreement is silent on the issue.

The Authority would be considered the principal contractor as they are commissioning the project.6 As the construction project can only have one principal contractor7, the Authority does have the option to transfer their obligation and engage RailLink as principal contractor due to their specific expertise in construction of railways.8As a principal contractors obligations are onerous, the Authority will want to ensure that this transfer and appointment is valid. We advise a contractual agreement whereby the Authority appoints RailLink and authorizes for them to discharge duties of a principal contractor. Bear in mind that appointing RailLink as principal contractor will not relieve the Authority of their health and safety obligations. 3. Does the Authority have to consult with RailLink about safety? By following the Code of Practice on Consultation, Co-operation and Co-ordination, will the Authority have discharged its consultation duty?

Yes, both the Authority and RailLink have a duty to consult with one another on the relevant health and safety matters in line with Clause 6.1 of the Agreement.9 It is important they both work together in a proactive and reciprocal way, so that all risks associated with the construction project are minimised as far as is reasonably practicable. As both the Authority and RailLink owe the same duty of care, each has the responsibility to discharge their duties to the extent to which they have the capacity to influence and control the matter.10 As per Clause 6.2 of the Agreement, RailLink also has a duty to consult with workers on the construction project in regards to safety notices issued by the Authority.11 4. Does the Authority require accreditation under the Rail Safety National Law for the construction work?

Yes, the Authority must appoint an accredited rail transport officer to carry out the construction of the national high speed rail network.12 This is to ensure the rail transport officer in charge has the competence and capacity to manage risks to safety associated with the construction of the railway.13 As the project involves specified construction of rail infrastructure, accreditation may be granted to the appointed rail transport officer.14
6

Work Health and Safety Regulation 2011 (NSW) s 293(1).

7 Work Health and Safety Regulation 2011 (NSW) s 293(4). 8 Work Health and Safety Regulation 2011 (NSW) s 293(2). 9 Work Health and Safety Act 2011 (NSW) s 46. 10 Work Health and Safety Regulation 2011 (NSW) s 293(3). 11 Work Health and Safety Act 2011 (NSW) s 47(2). 12 Rail Safety National Law (NSW) s 62(1)(a)(i). 13 Rail Safety National Law (NSW) s 61. 14 Rail Safety National Law (NSW) s 63(1)(c)(i).