Employer prosecuted for failing to “consult, cooperate and coordinate” with other duty holders under model WHS legislation

Who needs to read this Update?

Well everyone, we all have work health and safety obligations after all, but this update is particularly important for any employers that have a duty in relation to the same matter as another duty holder under the Model Work Health and Safety legislation (“WHS legislation”).

What sections of the WHS legislation are we talking about?

Section 16(1) provides that more than one person can concurrently have the same duty.  The primary duties are contained in sections 19 to 29 of WHS legislation and include:

1. the primary duty of an employer to ensure as far as reasonably practical, the health and safety of its employees; and

2. the duty of a person in control of a workplace to ensure as far as reasonably practical, the health and safety of those persons at the workplace. 

Whilst predominately the two duties above will be held solely by the employer because most employees work from their employer’s workplace (i.e. the employer has control of the workplace) this will not always be the case.  Take for example, a labour hire company (“Employee’s for Hire Pty Ltd”) who places its employee (“Bob”) with a host employer (“Manufacturer Pty Ltd”) at Manufacturer Pty Ltd’s workplace (“the factory”).  In this situation Employee’s for Hire Pty Ltd has a duty to ensure Bob’s health and safety but as it is not in control of the factory, Manufacturer Pty Ltd also has a duty to ensure Bob’s health and safety whilst he is working at the factory.  Accordingly, both Employee’s for Hire Pty Ltd and Manufacturer Pty Ltd have concurrent duties to ensure Bob’s health and safety.

Employee’s for Hire Pty Ltd has work health and safety policies and procedures in place and Manufacturer Pty Ltd also has separate work health and safety policies and procedures in place, but no consultation has occurred between these two entities about Bob’s health and safety, can these entities be theoretically satisfied that they are complying with their duties under the WHS legislation?  Well, simply put no!  Without going into the individual policies and procedures of these entities, one duty of the WHS legislation has clearly not been complied with, that being the duty under section 46 to “Consult with other duty holders”, which provides:

If more than 1 person has a duty in relation to the same matter under this Act, each person with the 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.”

Which leads us to the whole point of this article, an update about the recent decision of the Industrial Relations Court of South Australia, which in the first prosecution under section 46 of the WHS legislation, convicted the employer, Trainee and Apprentice Placement Service Incorporated (“TAPS”) for failing to “consult, cooperate and coordinate” with other duty holders, including Inspire Construction Services Pty Ltd, in liquidation (“ICS”), who was in control of the relevant site.

Boland v Trainee and Apprentice Placement Service Inc [2016] SAIRC 14

What happened?

In brief, TAPS employed Jack Reynolds, which placed Mr Reynolds with Shear Edge Roofing under the guidance of Joseph Cameron.  On 15 January 2014, Mr Cameron and Mr Reynolds were working on a site controlled by ICS.  Mr Cameron was handing 7.7 metre lengths of guttering to Mr Reynolds who was standing on scaffolding 4.1 metres below overhead powerlines.  The guttering being held by Mr Reynolds came into contact with a 240 volt powerline and an 11,000 volt powerline which resulted in Mr Reynold sustaining what the Court described as “quite horrific injuries”.    

Industrial Magistrate Ardlie commented, “it was surely not rocket science that an employer and also the person in control, or company in control of the site, … could have seen, as I can see from the photographs that the powerlines presented a real and present danger”.

Alarmingly there were no safety measures on site and the Court held that TAPS’ site auditing measures which it conducted were inadequate.  TAPS entered a plea of guilty to the prosecution under section 46 of the WHS legislation.

The Outcome

In determining the appropriate remedy, the Court took into consideration the measures which TAPS has taken since Mr Reynolds incident, including putting in place measures to “consult, cooperate and coordinate” with host employers (costing around $70,000.00 to implement) and measures to assist Mr Reynolds (i.e. topping up its workers’ compensation payments, providing him with counselling services, etc.).  The Court also considered TAPS not-for-profit status, the fact that it is an exemplary employer and its untarnished prior health and safety record. 

The maximum penalty for a corporation breaching section 46 of the WHS legislation is $100,000.00.   Industrial Magistrate Ardlie found that in consideration of the above, a $20,000.00 penalty was appropriate, which was discounted by 40% due to TAPS early guilty plea.  In total, including court costs, victims of crime levy etc. TAPS was ordered to pay $13,111.38 and had a conviction recorded.

Why does this case matter?

This case is reminder that section 46 of the WHS legislation exists and that employers with a concurrent duty need to take their obligation to “consult, cooperate and coordinate” with other duty holders seriously.  Not only is an employer at risk of a conviction and penalty, let’s not forget that the purpose of the WHS legislation is to protect the health and safety of people!

You have a concurrent duty, what now?

You need to take a practical approach to addressing section 46 of the WHS legislation.  If you are an employer who regularly has employees working away from your workplace then you should be looking to implement the “bee’s knees” of policy, procedure and implementation to ensure that you are complying. 

Less frequent concurrent duties call for a realistic approach, which does not mean you do not need to “consult, cooperate and coordinate”, rather it means that a telephone discussion, review of the policies and procedures of the entity controlling a site and/or a site visit to identify potential hazards (which can then be discussed), may be appropriate rather than demanding a daylong meeting to discuss possible health and safety issues for your employee who will be spending 30 minutes installing a window.  

Amy Richardson is a workplace relations Associate with HR Law.

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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