Consult, co-ordinate and co-operate: SafeWork NSW successfully prosecutes a PCBU for failing its consultation obligations with other duty holders

Persons conducting a business or undertaking (PCBUs) have a range of positive duties and obligations to ensure the health and safety of workers under the model work health and safety laws in Australia. These duties and obligations can at times be forgotten, especially when PCBUs are engaged in complex work arrangements that involve a number of duty holders.

In such cases, PCBUs must be aware of the duties they bear, such as the consultation obligation which requires a PCBU to ‘consult, co-operate and co-ordinate’ with other duty holders.

The consequences of failing to comply with these duties is demonstrated in SafeWork NSW v Aceline Plumbing Group Pty Ltd [2020] NSWDC 774, where the District Court of NSW (the Court) penalised a PCBU for its failure to consult with other duty holders, which subsequently lead to the serious injury of a worker.

Aceline Plumbing Group Pty Ltd (Aceline) was engaged in the supply and installation of roof guttering and associated products. Aceline had an arrangement with Easy Fall Pty Ltd (Easy Fall), who was engaged in substantially similar work, whereby Aceline would allow Easy Fall to undertake roof plumbing work using Aceline’s licence in return for a fee. The arrangement also required Aceline to comply with its obligations under work health and safety laws and to indemnify Easy Fall.

In or about April 2017, Easy Fall engaged an independent contractor (the Worker) to undertake roof guttering installation work for one of its clients, using Aceline’s licence.

The Worker attended the site and identified a number of safety risks in undertaking the installation. He notified Easy Fall of his concerns but was told that “a man of your calibre should be able to work it out” and was directed to complete the job.

The Worker also notified Aceline of his concerns when Aceline called him to ask him why the job was taking so long to complete. Notwithstanding this, Aceline did not provide the Worker with any information or instruction as to a safe work method to implement while undertaking the installation.

In or about May 2017, when undertaking the installation, the Worker fell off a two-metre-high makeshift platform when attempting to lift a 7.5-metre-long steel gutter shell onto the roof without assistance. He sustained significant injuries and underwent spinal surgery.

Neither Aceline nor Easy Fall notified SafeWork NSW of the incident – it was only informed in August 2017 when the Worker lodged a Request for Service.

SafeWork NSW subsequently brought proceedings against Aceline and it pleaded guilty to failing to comply with its obligation to notify the regulator immediately after a notifiable incident and also its obligation to consult, co-operate and co-ordinate activities with other duty holders.

The Court found no good reason as to why Aceline did not notify SafeWork NSW of the incident and that it ought to have known of its obligation to do so. It commented that a failure to comply with this obligation adversely impacts on the ability of SafeWork NSW to properly investigate an incident.

In relation to Aceline’s consultation obligations, the Court found that Aceline had failed in its positive duty to consult, co-operate and co-ordinate with Easy Fall and the Worker. In particular, Aceline had failed to:

  • Consult with Easy Fall and the Worker about the hazards and risks associated the roof guttering, including the control measures that should have been implemented to navigate such risk;
  • Co-operate with Easy Fall and the Worker to implement such control measures and arrange an additional worker to assist in the installation of roof guttering at a height; and
  • Co-ordinate with Easy Fall and the Worker by planning and organising the method of work to undertake the installation of roof guttering.

The Court further found that Aceline had failed to undertake a risk assessment or visit the site prior to the work being conducted, nor did it check if a risk assessment had been conducted by Easy Fall.

The Court stated that it should have been ‘glaringly obvious’ that there was an inherent risk associated with the nature of work and working from heights and it was the responsibility of Aceline, given it was the licence holder, to co-ordinate this with each of the duty holders. The Court considered that this serious failure significantly contributed to the injury of the worker.

In having regard to the above, the Court determined the appropriate fine for Aceline’s consultation breach to be $80,000 (from a maximum of $100,000), reduced by 25% due to its guilty plea. Aceline was also fined $30,000 for its failure to notify SafeWork NSW of the incident.

Lessons for employers

Work health and safety laws impose specific obligations on PCBUs such as the obligation to notify the regulator if an incident occurs and the positive obligation to ‘consult, co-operate and co-ordinate’ with other duty holders. Failure to comply with these obligations can result in significant penalties.

This matter also serves as a reminder to PCBUs that engage in complex work arrangements to be aware of their work health and safety obligations, especially where it may not be clear who holds obligations with respect to their workers.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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