Australia: Labour hire agencies and employers: work health and safety obligations and the duty to consult

The nature of employment is evolving. It is now common for work that was previously performed by employees to be outsourced to other entities or businesses, which can include labour hire or group training agencies. This often involves a triangular employment relationship where there is an agreement between a worker and the agency, and a commercial contract between the agency and host organisation.

These relationships often cause confusion about which party holds health and safety obligations - he host is not engaging the worker directly as an employee and the agency is not in control of the workplace, so the responsibility for safety obligations can become blurred. The model work health and safety legislation provides clarification on this issue by establishing that health and safety duties are held concurrently by both parties...but what does this mean in practical terms?

Work health and safety duties

Under the model work health and safety laws, host organisations have a duty to ensure the health and safety of all workers while at work, so far as is reasonably practicable. This includes any labour hire workers at their workplace.

Labour hire agencies are also obligated to ensure the health and safety of workers during their placement with host organisations so far as is reasonably practicable. This involves the elimination of or, if this is not reasonably practicable, the minimisation of risks to health and safety that a labour hire worker may encounter during their placement.

The recent case of Boland v Big Mars Pty Ltd [2016] SAIRC 11 highlights the serious consequences that can occur when a labour hire organisation misunderstands its duties and leaves all health and safety considerations to a host.

The Big Mars decision

In Big Mars, a labour hire worker was assigned to work at an abattoir run by a separate host company. On 6 November 2013 the worker was performing duties for the host by sterilising meat hooks when he fell into a chemical bath and suffered burns to 32% of his body. It was found that a major contributing factor to the incident was the worker's inability to read or speak English to the required standard. This meant he was unable to understand the host's safety instructions regarding the duties he was assigned.

Following the incident, the labour hire company, Big Mars Pty Ltd, was prosecuted for failing to provide a safe system of work and failing to provide information, instruction, training and supervision to the worker.

Big Mars did not meet its safety obligations as a labour hire provider as it failed to have any policies in place regarding risk management. Instead it left these considerations to the host company. This was evident given Big Mars did not audit the host's safety procedures or the work areas where its labour hire workers were placed. If an audit had been undertaken, Big Mars would have become aware that there were communication issues for workers who did not understand English, which led to the host's safety instructions being ineffective.

Big Mars had a duty to take all reasonably practicable steps to ensure that risks to safety were controlled. This included satisfying the duty to provide appropriate safety instructions that the worker could understand.

Duty to consult, cooperate and coordinate

A crucial part of ensuring that concurrent duty holders meet their safety obligations is the need for parties to consult. Section 46 of the Work Health and Safety Act 2011 (Cth) (the Act) sets out that all duty holders who have safety obligations around the same matter must consult, cooperate and coordinate so far as is reasonably practicable to ensure their concurrent obligations are met.

This duty was highlighted in the recent decision of Boland v Trainee and Apprentice Placement Service Inc [2016] SAIRC 14 where a group training provider entered a guilty plea for failing to consult with a host employer. It was found that the defendant did not adequately consult with the host employer, resulting in a failure to adequately audit the host's safety measures on-site. The defendant was therefore unable to satisfy that the host undertook risk assessments and implemented necessary control measures for work undertaken by the defendant's apprentice. As such, the defendant was not in a position to confirm that its apprentices were working in line with safe work practices.

This was the first prosecution in Australia for a failure to consult under the Act and is likely to result in more attention being placed on the requirement for duty holders to liaise with each other, particularly in cases involving labour hire or group training relationships.

Tips for ensuring compliance

These decisions highlight the need for labour hire and group training providers to ensure they are compliant with their safety obligations under the Act and do not rely too heavily on host organisations to ensure the safety of workers.

Before placing a worker with a host, it is generally a requirement that a labour hire agency should (subject to what is reasonably practicable in the circumstances):

  • exercise due diligence by reviewing the host's safety record before agreeing to the placement of a worker
  • set out each party's safety responsibilities in writing so expectations are clear
  • provide workers with a general safety induction, covering consultation methods (so workers are aware of who to contact if they have safety concerns during their placement)
  • audit workplaces for any risks to work health and safety
  • verify that the host will provide site-specific and task-specific inductions, safety training and personal protective equipment
  • gather information about the work to be performed and any associated risks as well as consult with the host to ensure safety controls are in place to eliminate or, if this is not reasonably practicable, minimise safety risks, and
  • ensure that consultation with the host is ongoing.

If the above steps are taken (and documented so compliance can be easily demonstrated) then labour hire and group training providers should be in a good position to ensure they have met their safety obligations under work health and safety legislation.

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

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.