The South Australian Industrial Relations Court in the matter of
Boland v Trainee and Apprentice Placement Service
Inc.  SAIRC 14 has handed down the first conviction
under the model work health and safety laws for a failure by a duty
holder to consult with another duty holder.
Section 46 of the Work Health & Safety Act
(the Act) provides that:
"If more than one person has a duty in relation to the
same matter under this Act, each person with the 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 this provision is $20,000
for an individual or in the case of a corporation, $100,000.
In this case a labour hire business that specialised in
providing apprentice tradesmen sent a worker to perform duties with
a roofing contractor. The worker was standing on scaffolding and
was being passed a piece of guttering over 7 metres in length.
Whilst handling the guttering it clipped a power line electrocuting
The Industrial Magistrate noted that there was no safety
measures on site. He said that it was "surely not rocket
science" that an employer and the roofing contractor which was
in control of the site would not have seen that the powerlines
presented a real and present danger.
The Industrial Magistrate noted that the labour hire business
placed apprentices with approximately 100 host employers. It had
three field officers who attempted to attend various sites every 8
weeks. He noted that it was a difficult job and reliance must have
been placed on the host employers to do the right thing however
that did not absolve the labour hire operator from its duty to
consult under the Act.
The Industrial Magistrate convicted and sentenced the labour
hire business to a fine of $20,000 reduced by 40% taking into
account the extensive steps it put in place to improve its work
health and safety procedures. He also noted the contrition of the
labour hire business and the support that was provided to the
worker after the incident.
This case is a major alert for all businesses in the labour hire
industry and elsewhere including most contractors to ensure that
they have in place systems for consulting with host employers prior
to lending their workers on hire. These systems should be reflected
in contractually enforceable obligations upon all stakeholders to
consult on work health and safety matters in such a manner that is
consistent with their statutory obligations.
The decision notes the challenges faced by labour hire
businesses particularly when dealing with small clients where work
may only be done on a site for a short period of time. Nonetheless,
before allowing workers to be lent on hire, a labour hire business
must ensure that it has consulted with the host employer with
respects to the safety procedures that they have in place and to
the extent they are deficient, must ensure that procedures are put
in place before their employees are sent out to a site. The
procedures should be reflected in standard terms of business.
Attention to detail should be given to the work health and safety
systems with regards to the particular industry in which the host
operates and the work that will be performed to ensure that the
systems are adequate. A mere box ticking exercise will not to
suffice in order to discharge the labour hire business's duty
to consult under the Act.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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”
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).