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Safety Management: Consultation between PCBUs

Boland v Trainee and Apprentice Placement Service Inc [2016]

Recently, the South Australian Industrial Court convicted a not-for-profit employer as well as a host employer for severe injuries sustained by a contractor. The contractor - a roofer - was seriously injured when some guttering that he was working with came into contact with high-voltage power lines.

WHAT’S THE LAW?

As you would likely be aware, employers are responsible for the safety of their workers and must provide a safe work environment for these workers. In a situation where a worker is engaged by a recruiter and placed for work with a host client, both the recruiter and the host client are considered as ‘PCBUs’ and share a duty of care for the safety of the worker.

Under s 46 of the Model Work Health and Safety Act, where this shared duty of care arises, all parties must, as far as reasonably practicable: consult, cooperate, and coordinate with each other and their activities.

Simply put, the PCBUs have to work together to ensure that safety risks are reduced or eliminated as far as reasonably practicable. They have an obligation to be continuously informed about (changes to) the safety of workers or the work site.

This is over and above any obligations that the parties had to each other in their contracts.

It is worth noting that a PCBU can be in breach of s 46 even if a worker has not been injured (yet).

Until now, no one expected a PCBU to be taken to court purely under a breach of s 46- rather, it was widely believed that a PCBU would be charged under other provisions of the Act.

However, the case of Boland demonstrates a willingness by the courts to take obligations under s 46 seriously.

WHAT HAPPENED DIFFERENTLY?

In the case of Boland, the South Australian Industrial Court chose to prosecute a not-for-profit recruiter, or on-hire company, for failing to adequately consult with the host client about:

  • The safety of the work site both as a whole and with respect to the kinds of tasks that the worker was to perform;
  • The extent to which risk assessment and hazard identification processes had been undertaken;
  • The level of training that worker would undergo.

The on-hire company had apparently visited the site, and had sent three field officers to visit the site every eight weeks to conduct WHS checks.

HOW WERE THEY STILL FOUND GUILTY?

Although the case does not outline precisely what the field officers did when they conducted checks, it was clear that these checks were inadequate- the judge in Boland stated that it was “surely not rocket science”1 that hanging power lines presented a real danger.

The court looked beyond the ‘appearance’ of close monitoring to what really happened during those WHS checks. Did the officers fulfill their obligations? Did they, in fact, consult cooperate and coordinate with the host employer? How? What kind of questions did they ask that host employer?

Because of this failure, the on-hire company was not aware of the fact that there were no safety measures in place at the work site despite the potentially high safety risk involved in the work: after all, the roofer was working with guttering that was dangerously close to 11,000 volt power lines.

TAKE HOME MESSAGES

This landmark case made it clear that courts are prepared to hold PCBUs accountable under s 46: parties must carry out their duty of care and consult, cooperate and coordinate with other parties, and they must be seen to be doing this in an appropriate manner.

Most parties, even the parties in this case, have some processes in place for communication. But this, in and of itself, will not be sufficient to discharge liability- it is important that the processes that have been put in place are of an adequate standard.

Ask yourself the following…

  1. Do you maintain ongoing communication between all parties and keep reliable records? Can both parties demonstrate that they are actively and appropriately consulting, cooperating and coordinating?

  2. As the recruiter/on-hire company, are you maintaining regular contact with the workers that you have placed to monitor any safety matters and to keep up-to-date on their activities and work locations?

  3. As the host client, how well do you maintain a safe work environment? Can this be demonstrated both in the documented management system and in the safety controls?

  4. As the recruiter/on-hire company, how well do you understand the work environment where your workers are placed, such as what activities take place, what hazards and incidents are present, and how well these hazards are managed?Are you monitoring this sufficiently and regularly according to the level of safety risk?

WHERE DO YOU GO NEXT?

This seminal case has made it clear that courts are prepared to pursue and convict recruitment/on-hire companies as well as host employers, regardless of how onerous the obligations under s 46 are.

Indeed, the court acknowledged that the not-for-profit’s task was a “difficult one” 2 and that they had to rely on the host employers to “do the right thing”3, but maintained that this did not absolve the on-hire company of concurrent responsibility to consult, cooperate, and coordinate with the other PCBU.

Thus, the company was convicted and fined $12,000.

In order to avoid penalties, parties need to demonstrate that they have discharged their obligations and properly investigated the work site (including communicating with host employers and contractors).

The iSafe Program assists recruiters and their clients to manage their obligations. This is a detailed assessment of the safety risks at a host client site conducted by an independent and competent WHS Risk Assessor through Service Excellence Consulting Pty Ltd. At the conclusion of assessment, a high-level report is provided which will assist PCBUs in identifying safety risks and establishing an excellent basis for (ongoing) discussions between parties to better manage safety risks together.

Keeping our workers safe is essential. All parties need to demonstrate that they have discharged their obligations and met the requirements for safety management.

If you have any questions or would like to learn more about the iSafe program, please do not hesitate to contact Dianne Gibert, Managing Director of Service Excellence Consulting Pty Ltd.

1. In paragraph 6 of the judgment.
2. In paragraph 8 of the judgment.
3. In paragraph 8 of the judgment.