Australia: First conviction for failing to co-operate, consult and co-ordinate under model WHS laws

The decision of the SA Industrial Court in Boland v Trainee and Apprentice Placement Service Inc [2016] SAIRC 14 is the first ever conviction for breach of the 'concurrent duty holder consultation duty' under the model work health and safety (WHS) legislation.

The decision also shows that not-for-profit (NFP) organisations are as much subject to the obligations imposed by the model laws as any other duty-holder.


In this case, a NFP (Trainee and Apprentice Placement Service Inc) placed a roofer with a roofing contractor in circumstances which led to his sustaining severe injuries when some guttering came into contact with high-voltage powerlines.

A prosecution was brought against the NFP under section 46 of the Work Health and Safety Act 2012 (SA). Section 46 of the model WHS legislation is headed 'Duty to Consult With Other Duty Holders' and provides that:

If more than one person has a duty in respect of the same matter under this act, each person with a duty must, so far as is reasonably practicable, consult, cooperate, and coordinate activities with all other persons who have a duty in relation to the same matter.

The maximum penalty for a breach of section 46 is $20,000 for an individual, and $100,000 in the case of a body corporate (such as the NFP in this case).

Many commentators had thought that section 46 of the model WHS laws may never be the subject of a prosecution. It was expected that any contraventions would be pursued as a breach of the general duty applicable to persons conducting a business or undertaking; and that at most, a breach of section 46 might be articulated as a particular of alleged breaches of the primary duty.

Therefore, the decision to initiate a prosecution under section 46 in this case was somewhat surprising.


The court heard evidence and found that:1

  • the JSA audit conducted on the work site was inadequate;
  • there were no safety measures in place on the site;
  • it 'was surely not rocket science' that the employer and the person conducting the business or undertaking (PCBU) 'could have seen ... that the powerlines presented a real and present danger'.

While the NFP/employer, which had placed the roofer on site, had some awareness of WHS issues and had field officers visiting the site every three weeks:

Their task was certainly a difficult one and there must have necessarily been reliance upon those on site to at least do the right thing, but nevertheless there remained the duty to consult with other duty holders, and that is made clear by s 46 which is the basis upon which the prosecution proceeds.2

The NFP was convicted for breaching section 46 and fined $12,000 (after a 40% reduction for mitigating circumstances on the appropriate penalty of $20,000). Factors including the NFP's guilty plea, its subsequent efforts to improve safety consultation processes, and its contrition and support of the injured roofer were all taken into account in determining the penalty.

The decision highlights the fact that the section 46 'duty to consult with other duty holders' (in this case the host employers) is critical and will resound in legal liability. Importantly, it also shows that that NFPs are not 'cut any slack' under the model WHS legislation. Liability was imposed here, despite the fact that:

The defendant has been in operation since November 1997 and ... has had no prior convictions. [It] ... is an exemplary employer and carries out a very worthy task in assigning people to various host employers and to advance those people in their roles in employment and in the community. I am told that there are some 260 apprentices engaged with 100 host employers. It is a not-for-profit organisation.3


This case demonstrates that the "concurrent duty holder duty" must be taken seriously by PCBUs and their officers, and to a lesser extent, workers and others.


Frequent occurence demands a "Rolls Royce Approach"- where a PCBU regularly "shares a duty" with another duty holder (for example, frequently used contractors) the PCBU should ensure that its contractual arrangements with that contractor:

  • acknowledge that the "concurrent duty holder duty" requires each of them to: "consult, co-operate and co-ordinate" their actions to keep safe the person or group of persons in relation to whom they share a duty; and
  • provide a mechanism for engaging in appropriate consultation.

One-off and less frequent occurences require a "Pragmatic Approach" – where a PCBU "shares a duty" with another duty holder infrequently, compliance may not require a Rolls Royce Approach and a Pragmatic or Checklist Style Approach may suffice.

It is important to note that the "concurrent duty holder duty" has been employed by "weaker" duty holders to "force" reluctant, more powerful duty holders (with whom they share a duty), to discuss safety – hence the use of section 47 of the WHS Act as a "sword" in some circumstances.

The WHS Team at Corrs has conducted many workshops on the Concurrent Duty Holder obligation and how to comply - we have also advised on its use as a "sword and a shield". Please contact if you would like copies, or to arrange a workshop at your workplace.


1[2016] SAIRC 14 at [5]-[6].

2 Ibid at [8].

3 Ibid at [7].

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Chambers Asia Pacific Awards 2016 Winner – Australia
Client Service Award
Employer of Choice for Gender Equality (WGEA)

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.