As a result of the change to work health and safety laws
(WHS) in 2011, persons conducting a business or
undertaking (PCBU, which includes employers) must consult,
cooperate and coordinate their activities with other PCBUs who
have a WHS duty in relation to the same matter
(Consultation Duty). Failure to do so can result
in penalties of up to $100,000 for businesses.
Typically most WHS cases involve breaches of duties to ensure,
so far as reasonably practicable, the health and safety of workers
and other persons. Unfortunately what this can result in is a
narrow focus on meeting this duty to the detriment of others.
Employers (and businesses generally) should be aware that health
and safety in the workplace does not stop with dealing with
internal issues and one's own workers. The Consultation Duty
makes it clear that safety is an overall approach that requires
some level of interaction with other businesses who may have an
impact on the task/matters at hand. As a result, PCBUs should:
Identify the other businesses that may have a role to play in a
Don't simply assume that these other businesses have
adequately addressed their WHS issues.
Liaise with businesses to either jointly identify risks to
health and safety or view known risks that another business has
Determine what the best method is for ongoing communication eg
email, phone, face to face meetings.
Labour hire business should be particularly vigilant to comply
with Consultation Duty, as they are sending their workers into
Failure to consult lead to serious injuries
In a recent case in South Australia Boland v Trainee and
Apprentice Placement Service Inc  SAIRC 14 the South
Australian Industrial Relations Court fined a not-for-profit
organisation $12,000 for failing to comply with the Consultation
The business, Trainee and Apprentice Placement Service Inc.
(TAPS), assigned apprentices to host employers. In
January 2014 an apprentice was assigned with a roofer (Joseph
Cameron Argent, t/as Shear Edge Roofing). During one task, the
worker was handed 7.7 metres of guttering whilst only being 4.1
metres from power lines. The guttering came into contact with both
a 240 volt and 11,000 volt power line, resulting in significant
injuries to the worker.
Industrial Magistrate Michael Ardlie noted that there were no
safety measures in place at the work site, even though it involved
clearly high risk work within close proximity to power lines.
Despite TAPS having knowledge of WHS issues, with three field
officers who would attempt to visit the various worksites where
apprentices were placed, TAPS could not simply rely on those other
business at the work site to do the right thing as it relates to
WHS without at least making sufficient enquiries.
TAPS, by not consulting, cooperating or coordinating with Shear
Edge Roofing, was unaware as to whether appropriate training would
be provided to TAPS' worker or even whether risk/hazard
identification had been undertaken and any risks eliminated or
minimised as far as reasonably practicable.
The value of the fine, being $12,000, was ordered because of an
early guilty plea and the measures TAPS had put in place after the
incident to reduce the risk of a recurrence of a failure to comply
with the Consultation Duty.
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.
Kemp Strang has received acknowledgements for the quality of
our work in the most recent editions of Chambers & Partners,
Best Lawyers and IFLR1000.
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