The South Australian Industrial Relations Court has recorded the first conviction against a company for failing to comply with the duty to consult, cooperate and coordinate activities with other duty holders in relation to work health and safety matters.

A trainee and apprentice placement organisation, Trainee and Apprentice Placement Services Inc. (TAPS), was fined $12,000, a fraction of the potential maximum penalty of $100,000, for breach of consultation obligations (for a corporation) under the Model Work Health and Safety (WHS) Act.

TAPS had placed an apprentice in a position with a roofing company. In January 2014, while working for the roofing company at a construction site, the apprentice suffered "horrific injuries" when a section of guttering he was handling came into contact with power lines.

Obligation to consult

TAPS was prosecuted under section 46 of the Work Health and Safety Act 2012 (SA), a provision which is replicated in all other Australian States and Territories that have adopted the model WHS legislation (i.e. all States and Territories other than Victoria and Western Australia). That provision states:

“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, cooperate, and coordinate activities with all other persons who have a duty in relation to the same matter.” (Emphasis added.)

Interestingly, while other entities were charged with safety breaches after the incident, TAPS was the only entity to be prosecuted for breach of the consultation duty where the construction company in charge of the site had gone into liquidation.

The Industrial Magistrate found that TAPS had an awareness of WHS issues and undertook certain measures to comply with its WHS duties (for example, visiting each of its host employers every 8 weeks). However, the Court also found that TAPS had not engaged in a consultation process with the roofing company about its WHS policies and procedures and admitted that an audit it had conducted on the roofing company's operations prior to the incident was inadequate. The Court accepted evidence there were no safety measures in place at the site, despite it being a high risk environment.

Penalty

The Industrial Magistrate applied a significant reduction to the penalty imposed on TAPS for breach of section 46 because it had entered an early guilty plea, acted swiftly to comply with improvement notices, spent around $70,000 improving its safety systems to ensure that it complied with its consultation obligation in the future and had provided substantial ongoing support to the injured apprentice after the incident.

Turning attention to consultation

The Court's decision should serve as a reminder that the consultation obligations in WHS legislation must not be overlooked. This decision is of particular importance to organisations responsible for placing workers with host employers or on client sites to perform their primary work. Consultation with other duty holders should form a standard compliance measure in any engagement, placement or audit process. Failing to comply with consultation duties can lead to significant penalties and safety convictions recorded against the company.

Aside from statutory compliance, failing to consult with other parties may prevent an employer from obtaining all of the information required to make a proper assessment about safety. Consultation with concurrent duty holders is essential to an employer being able to discharge its primary WHS obligations, where these duties can never be entirely delegated to a third party.

Boland v Trainee and Apprentice Placement Service Inc. [2016] SAIRC 14 (27 May 2016)