A year has passed and we are yet to see a prosecution under the new HSWA in New Zealand. However with the on-going number of queries arising, particularly from a practical perspective, we thought it useful to recap on the new obligation to "consult, co-operate and co-ordinate" where there is more than one person conducting a business or undertaking (PCBU).
Last year in South Australia this obligation was analysed following a prosecution under s46 of the Work Health and Safety Act 2012 (SA). Section 46 provides:
"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, co-operate and co-ordinate activities with all other persons who have a duty in relation to that same matter".
Section 34 HSWA mirrors s46 of the Australian legislation. We therefore briefly review Boland v Trainee and Apprentice Placement Service Inc to focus on the key messages for PCBUs, particularly where there are a number of PCBUs, all with an obligation to ensure the health and safety of workers, so far as is reasonably practicable.
Boland v Trainee and Apprentice Placement Service Inc  SAIRC 14
In this Australian case, Mr Reynolds was an apprentice of Trainee and Apprentice Placement Service Inc (TAPS) which was a not-for-profit organisation who provided apprentices to host employers. At the relevant time it had some 260 apprentices engaged with 100 host employers.
TAPS placed Mr Reynolds with Shear Edge Roofing (a PCBU) to assist with guttering work on a worksite, controlled by another PCBU, Inspire Construction.
Mr Reynolds was working with Mr Argent on a roof and was handed up some guttering. He was in very close proximity to some powerlines. The guttering came into contact with the powerlines and Mr Reynolds was electrocuted and suffered multiple injuries.
The Industrial Relations Court (SA) found that although TAPS had an awareness of health and safety issues and had three field officers on site who attempted to attend the various sites every eight weeks, the audit on site was inadequate and there were no safety measures in place on site, despite the significant risk to the proximity of the powerlines.
Despite TAPS' own attempts to comply with its health and safety duties, there remained a duty on it to consult with other duty holders, to ensure there were adequate health and safety measures in place whilst their apprentices were on site. The Court concluded that TAPS failed in its duty as a PCBU to consult, co-operate and co-ordinate with other duty holders to ensure the safety of its apprentice, Mr Reynolds.
Following the incident, TAPS took a number of steps to improve its health and safety systems (at a cost of $70,000) with an emphasis on ensuring that it was compliant with its duty to consult, co-operate and co-ordinate. On account of TAPS' safety record, its significant acts of contrition towards Mr Reynolds and an early guilty plea, the starting point of $20,000 was reduced to a fine of $12,000.
If you have workers where you have limited control over their day to day work environment (for example a labour hire company) or you are sending workers to clients' sites (for example) it is important to:
- Obtain and consider the PCBU's health and safety policies for the locations where the worker will be based, visiting, or working;
- Ensure that the PCBU who can control and influence the workplace carries out an induction with the relevant worker and provides that worker with information in respect to health and safety, risk management, emergency procedures etc;
- Regularly communicate with the worker and the relevant PCBU(s) to understand how health and safety issues are tracking, and to check the effectiveness of the current strategies; and
- Visit the workplace that is controlled or influenced by the relevant PCBU, particularly if the worker is regularly in attendance there, and satisfy yourself that as an employer of this worker, you are comfortable that health and safety considerations have been covered, and are in fact being adequately implemented.
How broad is the duty to consult, co-operate and co-ordinate?
The above obligation extends beyond the triangular employment relationship, the labour hire scenario and is relevant to the day to day work carried out by many organisations. Further, it is also relevant to events planned for workers, including for example team building days.
Let's consider for a moment the workplace has organised a team planning day that includes archery and clay bird shooting for your workers to participate in. Have you contacted the venue and asked about any risks or hazards that arise from those activities, and how they will be mitigated or minimised? Have you made enquiries as to how the organisation manages the risks when presented with a group of wide and varied skill sets (i.e. some with no experience whatsoever)? What sort of induction is provided? What emergency measures are in place? Are you satisfied that the organisation that will be hosting your workers for the day has sufficiently addressed the risks and has strategies in place for minimising or eliminating those risks?
Balancing the above of course is that any such steps must be so far as is "reasonably practicable". While it may seem over the top, a conversation or email trail demonstrating that as a PCBU you have turned your mind to the health and safety aspects of the operations of another PCBU where your workers are going to be located is likely to significantly mitigate your risk in the event something goes horribly wrong.
If you're a PCBU and find yourself in a situation where you're unsure whether you must consult, co-operate and co-ordinate with another PCBU, simply ask yourself this: do I or does my organisation have the ability to influence and control workers' activities in this situation? If the answer is yes, then you will be susceptible to liability under the HSWA and it is necessary to do what is reasonably practicable to eliminate and/or minimise risks.
While it may seem pedantic at the time, taking time to reflect on some of these questions and actively seeking out other PCBUs in relation to health and safety requirements could save you or your organisation a hefty fine – up to $20,000 for individuals and $100,000 for any other person. The financial incentive to eliminate or minimise risks to health and safety so far as is reasonably practicable, particularly in what have traditionally involved activities outside the workplace and under the influence of other PCBU's, has never been greater.
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.