Australia: Common bond: first conviction for duty holder's failure to consult with another duty holder about worker safety

Last Updated: 26 October 2016
Article by Mei-Lim Smith and Leonard Lozina
Services: People & Workplace

This article was first published in National Safety - a magazine of the NSCA Foundation. A PDF version can be found here.

Every business should be acutely aware of its duties to manage work health and safety (WHS) risks. But what happens when WHS responsibilities fall to more than just one business? How are shared risks and responsibilities managed?

What is the obligation to consult with other duty holders?

A landmark case in South Australia has thrown a spotlight on the need for businesses to consult with other duty holders about the management of WHS risks, or face significant consequences.

When an individual or organisation shares responsibility for a WHS matter with another individual or organisation, section 46 of the Model Work Health and Safety Act requires the parties to consult, cooperate and coordinate their activities. This obligation applies in Australian states and territories that have adopted the harmonised WHS laws (Victoria and Western Australia are yet to adopt the laws).

There are many situations in which multiple businesses share responsibility for workers' health and safety. For example, where:

  • More than one business operates at a workplace, as is commonly the case with construction projects and in multi-tenanted office buildings
  • Labour hire companies place workers with host employers
  • Employers require workers to perform their work on client sites
  • Businesses manufacture, supply or install plant or equipment to be used in a workplace.

In these situations, the different businesses involved must work together in a proactive way to ensure that all risks associated with their activities are eliminated or minimised as far as reasonably practicable.

Failure to comply with the obligation to consult, cooperate and coordinate with another duty holder can result in safety convictions and significant penalties. The maximum penalty for a company is $100,000 and for an individual $20,000. These penalties apply irrespective of whether the lack of consultation, cooperation and coordination results in a specific incident in the workplace.

Further, a WHS duty holder's failure to comply with this specific obligation may also give rise to a broader liability for any failure to comply with the primary duty to ensure the health and safety of a worker.

First conviction for failure to consult with host employer

In the landmark case Boland v Trainee and Apprentice Placement Service Inc [2016] SAIRC 14 (Boland), a non-profit organisation that assigned an apprentice to work for a host employer became the first entity to be convicted for failing to consult, cooperate and coordinate its activities with another duty holder, being the host employer. The case was heard in South Australia, where the Work Health and Safety Act 2012 (SA) imposes this obligation under section 46 of that Act.

The apprentice roof plumber had been placed by his employer, Trainee and Apprentice Placement Service Inc (TAPS), with a host employer called Shear Edge Roofing. The apprentice sustained serious injuries when a section of guttering he was handling came into contact with highvoltage powerlines.

Even though TAPS was not the company in control of the worksite, it had a duty to protect the safety of its apprentice and share this duty with the host employer. Although TAPS employs field officers who try to visit its host employers every eight weeks to conduct WHS checks, in this instance TAPS failed to consult with Shear Edge Roofing about issues that could affect the safety of the apprentice.

In particular, TAPS did not adequately consult with Shear Edge Roofing to determine whether it:

  • would provide appropriate training to the apprentice
  • had undertaken an adequate hazard identification and risk assessment process for the construction site
  • had safe work methods in place for the tasks the apprentice would be required to undertake
  • was providing and maintaining, so far as was reasonably practicable, a work environment without risks to health and safety.

As a result of its failure to consult with Shear Edge Roofing, TAPS was unaware there were no safety measures in place at the worksite, even though the apprentice was performing high-risk work close to powerlines.

As stated by Industrial Magistrate Michael Ardlie of the Industrial Court of South Australia:

"It was surely not rocket science that an employer and also the person in control, or the company in control of the site, which I am told is the third defendant, Inspire Construction Services Pty Ltd, which is now in liquidation, could have seen, as I can see from the photographs, that the powerlines presented a real and present danger."1

TAPS was fined $12,000 for its failure to consult, cooperate and coordinate its activities with Shear Edge Roofing. This is substantially less than the maximum penalty of $100,000. In setting the fine, Ardlie took into account that TAPS had responded to the incident by spending approximately $70,000 on improving its own safety systems to ensure it complied with its duty to consult, cooperate and coordinate with its host employers.

Key lessons

The decision in Boland is a salient reminder that the obligation to consult under WHS safety laws involves more than communicating with workers about internal WHS issues.

Businesses also need to consult and coordinate their activities with third parties who share a WHS duty for the same matter.

In particular, businesses should:

  • establish whether there are other duty holders they need to consult by identifying the areas in which their WHS duties overlap with third parties
  • liaise with these duty holders to identify risks to health and safety and implement appropriate controls to mitigate and monitor these risks
  • not assume, in the absence of consultation, that other duty holders have adequately considered and addressed WHS risks.

It is critical to bear in mind that the obligation to consult, cooperate and coordinate with other duty holders is a proactive and continuous obligation. It should therefore be considered not only during the planning phase before new work is commenced, but also whenever new projects, processes, plant, equipment or other risks are encountered or introduced into the workplace.

As the duty to consult is limited to what is 'reasonably practicable', the steps that must be taken to satisfy this obligation will depend on the operations and relationships under consideration, as well as the factual circumstances of each case.

Labour hire companies should be particularly diligent in ensuring they have adequate systems in place for consulting with host employers, particularly where a new host employer engages the services of a worker or an existing host company requires workers to attend a new workplace.

Footnote

1Boland v Trainee and Apprentice Placement Service Inc [2016] SAIRC 14, per Industrial Magistrate Michael Ardlie at [6]

This article is intended to provide commentary and general information. It should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this article. Authors listed may not be admitted in all states and territories

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Authors
Mei-Lim Smith
 
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