Contractors' and other employers' approach to the
provision of a safe workplace cannot be implemented in isolation
from the context of their work environment. Employers must
acknowledge the existence of other contractors in co-operating and
co-ordinating efforts to implement a safe work environment and
assess site specific risk.
A recent decision in the Industrial Court of New South Wales
where three contractors were each fined $120,000 for the death of
an employee highlights the need for contractors on
multidisciplinary worksites to focus on communication and
co-ordination in risk assessment and in the implementation of
safety policies and procedures. The Court recognised that these
contractors had good internal communication, however their general
discussions fell short of what was necessary to discharge their
obligations under the Occupation Health and Safety Act 2000 to
ensure the health, safety and welfare of employees.
The three contractors - Eagle Eye Traffic Services Aust Pty Ltd,
Nace Civil Engineering Pty Limited, and Borthwick & Pengilly
Asphalts Pty Ltd - were involved in a joint project to resurface a
road that required work to be undertaken at night. The employee was
wearing reflective clothing, carrying a wand and two-way radio and
the truck had reversing alarms and flashing lights. General
discussions had occurred between the subcontractors about the tasks
that were going to take place on site. However, a failure to
identify the "obvious risk" of vehicle/mobile plant
resulted in the fatal injury of the employee after he was struck by
a reversing truck. The Court found roadwork to be "inherently
dangerous and sites must be rigorously assessed".
Justice Kavanagh held that a failure of the contractors to
identify specific risks and communicate them resulted in an absence
of a co-ordinated safety plan contributed significantly to the
fatality. Each party was responsible for identifying risk involved
in the work site. Co-ordination was identified as "a priority
on sites with multi-subcontractors." There was a complete
failure by the contractors to develop a safety plan in relation to
vehicle/mobile plant and pedestrian movements within the site. This
resulted in employees on the site being inadequately trained and
What does this mean for employers?
The importance of consulting, co-operating and co-ordinating
with other duty holders cannot be ignored. Employers must ensure
that adequate communication processes are implemented and
maintained in relation to occupational health and safety
There will be a legislative requirement of duty-holders to
consult, co-operate, and co-ordinate with each under the harmonised
OHS Acts, commencingon 1 Jan 2012. Clause 45 of the model provision
"If more than one person has
a duty in respect of the same matter under this Act, each person
with the duty must, so far as is reasonably practicable, consult,
co-operate and co-ordinate activities with all other persons who
have a duty in relation to the same matter. Significant penalties
have been attached to this obligation; $20 000 for an individual
and $100 000 for a body corporate."
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.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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