An organisation in South Australia has become the first 'person conducting a business or undertaking' (PCBU) to be convicted for a breach of its obligation to 'consult, co-operate and co-ordinate' with another PCBU who had overlapping WHS obligations under the WorkHealth and Safety Act 2012 (SA) (WHS Act).
The Trainee and Apprentice Placement Service Inc (TAPS) was convicted and fined $12,000 (the maximum penalty was $100,000) in late May 2016 after a worker it placed with Joseph Cameron Argent (trading as Shear Edge Roofing) sustained 'horrific injuries' while he was handling guttering that came into contact with 240-volt and 11,000-volt powerlines.
Despite the very apparent high risk work environment (where powerlines were in close proximity to the site), the job safety analysis for the work was inadequate and there were no safety measures in place at the site.
TAPS had three field officers that attempted to attend various sites every eight weeks, but the Court found there was still an unacceptable level of reliance placed on other duty holders to discharge their duties under the WHS Act.
TAPS failed to consult with Argent when it failed to ensure that:
- Argent or the principal contractor had performed an adequate hazard identification and risk assessment process for the site;
- Argent was providing and maintaining, so far as was reasonably practicable, safe systems of work and a written safe work method statement for high-risk tasks;
- Argent was providing and maintaining, so far as was reasonably practicable, a work environment without risks to the workers' health and safety; and
- the training and supervision that Argent provided to the worker was adequate and effective, and related to high-risk tasks performed at the site.
Industrial Magistrate M Ardle commented that 'it was surely not rocket science than an employer and also the person in control, or the 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'.
What does this mean for your organisation?
- A number of duty holders can hold concurrent duties under WHS laws – we often see overlapping duties between designers, suppliers, manufacturers, controllers, installers and contractors. Although there may be many circumstances where multiple PCBUs have the same obligation under WHS laws, reliance on another PCBU to comply with their duties does not automatically result in compliance from your organisation's end.
- Understanding where your organisation's WHS duties overlap with third parties is key to limiting WHS risks. After those concurrent duties are identified, the following steps should be taken at the start of, and during, any project involving concurrent duty holders:
- provide other duty holders with information regarding the scope of work to be performed during the project, the risks associated with the work and identified controls and consider similar information provided to you (and how those identified risks might affect your workforce);
- during the lifecycle of the project, update the information above whenever any new work, risks and controls are identified – this should also be done every time a trigger event occurs, such as an incident; and
- perform risk assessments in conjunction with concurrent duty holders wherever there are any interfaces and record duties assigned to each party to monitor and control the identified risks.