First conviction for failing to co-operate, consult and co-ordinate under model WHS laws - Health & Safety

The decision of the SA Industrial Court in Boland v Trainee and Apprentice Placement Service Inc [2016] SAIRC 14 is the first ever conviction for breach of the 'concurrent duty holder consultation duty' under the model work health and safety (WHS) legislation.

The decision also shows that not-for-profit (NFP) organisations are as much subject to the obligations imposed by the model laws as any other duty-holder.

WHAT HAPPENED?

In this case, a NFP (Trainee and Apprentice Placement Service Inc) placed a roofer with a roofing contractor in circumstances which led to his sustaining severe injuries when some guttering came into contact with high-voltage powerlines.

A prosecution was brought against the NFP under section 46 of the Work Health and Safety Act 2012 (SA). Section 46 of the model WHS legislation is headed 'Duty to Consult With Other Duty Holders' and provides that:

If more than one person has a duty in respect of the same matter under this act, each person with a 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 section 46 is $20,000 for an individual, and $100,000 in the case of a body corporate (such as the NFP in this case).

Many commentators had thought that section 46 of the model WHS laws may never be the subject of a prosecution. It was expected that any contraventions would be pursued as a breach of the general duty applicable to persons conducting a business or undertaking; and that at most, a breach of section 46 might be articulated as a particular of alleged breaches of the primary duty.

Therefore, the decision to initiate a prosecution under section 46 in this case was somewhat surprising.

THE DECISION

The court heard evidence and found that:¹

the JSA audit conducted on the work site was inadequate;
there were no safety measures in place on the site;
it 'was surely not rocket science' that the employer and the person conducting the business or undertaking (PCBU) 'could have seen ... that the powerlines presented a real and present danger'.

While the NFP/employer, which had placed the roofer on site, had some awareness of WHS issues and had field officers visiting the site every three weeks:

Their task was certainly a difficult one and there must have necessarily been reliance upon those on site to at least do the right thing, but nevertheless there remained the duty to consult with other duty holders, and that is made clear by s 46 which is the basis upon which the prosecution proceeds.²

The NFP was convicted for breaching section 46 and fined $12,000 (after a 40% reduction for mitigating circumstances on the appropriate penalty of $20,000). Factors including the NFP's guilty plea, its subsequent efforts to improve safety consultation processes, and its contrition and support of the injured roofer were all taken into account in determining the penalty.

The decision highlights the fact that the section 46 'duty to consult with other duty holders' (in this case the host employers) is critical and will resound in legal liability. Importantly, it also shows that that NFPs are not 'cut any slack' under the model WHS legislation. Liability was imposed here, despite the fact that:

The defendant has been in operation since November 1997 and ... has had no prior convictions. [It] ... is an exemplary employer and carries out a very worthy task in assigning people to various host employers and to advance those people in their roles in employment and in the community. I am told that there are some 260 apprentices engaged with 100 host employers. It is a not-for-profit organisation.³

IMPLICATIONS AND NEXT STEPS

This case demonstrates that the "concurrent duty holder duty" must be taken seriously by PCBUs and their officers, and to a lesser extent, workers and others.

COMPLIANCE WITH THIS DUTY SHOULD BE PLANNED AND DELIVERED STRATEGICALLY:

Frequent occurence demands a "Rolls Royce Approach"- where a PCBU regularly "shares a duty" with another duty holder (for example, frequently used contractors) the PCBU should ensure that its contractual arrangements with that contractor:

acknowledge that the "concurrent duty holder duty" requires each of them to: "consult, co-operate and co-ordinate" their actions to keep safe the person or group of persons in relation to whom they share a duty; and
provide a mechanism for engaging in appropriate consultation.

One-off and less frequent occurences require a "Pragmatic Approach" – where a PCBU "shares a duty" with another duty holder infrequently, compliance may not require a Rolls Royce Approach and a Pragmatic or Checklist Style Approach may suffice.

It is important to note that the "concurrent duty holder duty" has been employed by "weaker" duty holders to "force" reluctant, more powerful duty holders (with whom they share a duty), to discuss safety – hence the use of section 47 of the WHS Act as a "sword" in some circumstances.

The WHS Team at Corrs has conducted many workshops on the Concurrent Duty Holder obligation and how to comply - we have also advised on its use as a "sword and a shield". Please contact siobhan.flores-walsh@corrs.com.au if you would like copies, or to arrange a workshop at your workplace.

Footnotes

¹[2016] SAIRC 14 at [5]-[6].

² Ibid at [8].

³ Ibid at [7].

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.