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 (formerly with DibbsBarker)
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

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.

Authors
Mei-Lim Smith
Similar Articles
Relevancy Powered by MondaqAI
Sparke Helmore Lawyers
 
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 Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Sparke Helmore Lawyers
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions